The Judges delivered their opinions seriatim.

In forming an opinion on this case, I have been truly sensible of the peculiar hardship of the situation of the petitioners, and have felt, as far as I consistently could do, an anxious disposition to relieve them. But, after mature reflection, I feel convinced, that this court, on the proceedings now before them, is incompetent to grant relief.

Previously to the passage of the act of assembly of 1796, ch. ©7, the manumission of slaves by last will and testament was prohibited; by the l3th seciion o£ that act this prohibition was re*5moved; but upon this express condition, that no such manumission “shall be effectual to give freedom to any slave or slaves, if the same shall be in prejudice of creditors.” Whether in case of an insufficiency of the personal estate, (exclusive of the negroes manumitted,) to pay the debts of the deceased, it be deemed a prej'udice to creditors, within the meaning of the act of assembly, to subject them to the delay and expense unavoidably incurred in pursuing in a court of equity real assets, which have come to the hands of the heir by descent, I deem it unnecessary to determine. The ground on which I concur in the judgment given by the court below against the petitioners is, that the question of the existence of a sufficiency of real assets to pay the debts of the testator never can be tried on an issue between the petitioners and the executor or administrator only, without “prejudice” to creditors. It would be an issue to which they are no party, and to protect whose interest nobody appears. As far as relates to the personalty, the executor or administrator is competent to act for all who are concerned; but in trying the facts, whether there be assets by descent in the hands of the heir, and what is the amount thereof, he has no interest either personally or in right of representation. Virtute officii he is neither bound to acquire, nor presumed to possess any knowledge upon the subject. With the title he is unacquainted — with the value of the land equally uninformed. Let the proof offered to establish the same be what it may, he comes prepared neither to rebut nor resist it. Sanction the doctrine contended for by the appellants, and if at any period of his life the deceased be shown to have been seized of real property, the issue will be found for the petitioners, although, if proper parties interested were before the court, it could be made appear that he had conveyed away all his right by legal conveyances executed iorty years before his death. A most exaggerated estimate of the value of the real assets may be made by ignorant or partial witnesses; yet none, whose interest it is to do so, have an opportunity of cross-examining them, or disproving their statements The judgment of the court-having once given effect to the manumission, on the ground that effects in the hands of the heir should be applied to the payment of the debts, the executor or administrator is absolved *6from all responsibility, except as to the residue of the person^ ialty, and the creditors would be left to seek, through a court of equity, real assets, which perhaps never had an existence. Nothing was farther from the design of the legislature, than to have authorised a mode of judicial proceeding so unprecedented, and so unjust and prejudicial to creditors.

It may be urged that the case now before us should be an exception to the general rule, inasmuch as the testator has, in the contingency which has happened, charged his real estate with the payment of his debts; and it is admitted in the bill of exceptions, that the residue of the personal, with the real property, is adequate to their payment. But this suggestion is entitled to no weight.

In the first place the testamentary charge of the debts upon the land, was revoked by the deeds of conveyance subsequently executed; and if it had not been, the effect would be the same, as the existence or value of the property charged could not be inquired into. As regards the admissions by the appellee, he was wholly unauthorised to make them, and the court was incompetent to pass judgment upon the facts they contained — not being matters in issue in the cause.

I am of opinion that the judgment of the county court ought to be affirmed.

Although I concur in the conclusion to which the judge, who has just delivered his opinion has arrived, I do not altogether agree with his reasoning. I do not believe the act of 1796, ch. 67, s. 13, should be so construed as to prohibit a testator from manumitting his slaves, provided he has left real estate sufficient to pay his debts. All a man’s estate, real and personal, is a fund for the payment of his debts. The former can be resorted' to with as much facility in the absence of the latter, as personal property itself can. To, be sure the personal estate is the first fund to which'the creditor is to look; but I cannot believe if by the manumission of slaves, the personal estate is made insufficient, and the creditor is compelled to resort to the real estate for payment of his debts, that he is thereby prejudiced within the meaning of the act of assembly. To constitute such a prejudice, in my opinion, some loss should re», *7suit to him, which could not be the case where the real assets are sufficient.

My difficulty in the present case is that there are no parties to the record who are competent to make the admission, that the real estate is sufficient to pay the debts, when the petitioners are abstracted from the personal property. Surely the executor cannot do it. He has only to deal with the personal estate — with the real estate he has nothing to do, and is an entire .stranger to it. He is not in law supposed to know either the •title by which it is held or its value; nothing in relation to it coming within the scope of his legal power and authority. Were the admissions of an executor taken, creditors would be utterly insecure; they would be bound by the admissions of one who, from the character of his office, would be irresponsible to them, which would be the extremity of injustice.

Were it possible for the petitioners to ascertain the creditors of the testator, I strongly incline to the opinion that they might in equity be compelled to resort to the real estate for the payment of their debts. Of this, however, I give no decisive opinion, as the case before the court does not demand that I should point out a remedy, but only to determine whether the law furnishes the remedy which is sought; and I am clearly of opinion it does not; for we must be satisfied that the creditors will not sustain a loss, if the petitioners are adjudged to be free, and that we cannot do in these proceedings.

This is an appeal from a judgment of Kent county aourt. The appellants are petitioners, claiming their freedom Under the will of James Corse, and the appellee is his administrator, with his will annexed. The verdict is against the petitioners; and it was rendered on an agreed statement of facts, Under an instruction given by the associate judges of the court to the jury to find for the defendant. This instruction gave rise to the bill of exceptions, which forms the present subject of inquiry. Ought the court to have instructed the jury to find against the petitioners?

I approach the consideration of this subject with every disposition to favour the pretensions of the appellants, as it appears to have been the earnest wish of their master, protector *8and friend, that they should 'be free; 'but in deciding on their rights, my inclinations and feelings must not -induce me to overlook the interests of others. Their -contention is with Thomas C. Kennard, who appears in a representative character, and whose security in the performance of his trust, must be consulted. The creditors are the first objects of this ‘trust-, to whom his testator was bound to be just, before to others he could be generous. It was not in his power to confine them to a particular fund for the satisfaction of their debts, to whose demands the whole of his estate was equally liable. Mote particularly was it not with him, to turn them over from the natural fund, to one more uncertain, and less accessible. It is true they might resort to his real assets, agreeably to his wishes, but they had a right to call on his personal estate for payment, to the full extent of it, if they had been pleased so to do. The point then arises, whether a verdict and judgment rendered against this administrator, could have justified him to the creditors, if he had attempted to have established by proof the insufficiency of the real and personal assets, independent of the negroes, to pay the debts of the deceased, and failed in the attempt? The plain answer to the point is, that such a proceeding would not have excused him; because in the trial of such a question, he was not competent to act the part he assumed. With the real assets, and their sufficiency or insufficiency, he had nothing to say, and was in no way cognizant of their value or extent, and had not the means of ascertaining the one or the other. In my opinion, then, he acted the prudent part in avoiding this controversy, and by admitting the fact of sufficiency, very properly brought the question of right before the court, who appears to me to have decided it correctly. It never could have been the intention of the act of 1796, ch. 67, to have abrogated principles long established, by compelling creditors to look for payment to a particular fund, specified by their debtor; nor could it have been its design to oblige them to abide by the verdict of a jury, deciding on the question of sufficiency or insufficiency of real assets, where the executor alone was a party, and they not represented in the controversy.

I think the judgment ought to be affirmed.

JUDGMENT AFFIRMED.