In re the Estate of Ackerman

The only question in the ease is whether the proviso 1 at the end of Gen. St. 1878, c. 46, § 3, limits the time within which the real estate of a deceased person may be sold by the probate court for payment of his debts, not liens at the time of his death. It reads: “Provided, that no debt or claim against any deceased person, which had not become a lien upon his real estate before his death, shall continue to be a lien upon any such real estate after the lapse of three years from the date of such death.” Strictly, debts or claims do not become liens on the property upon the death of the debtor. The property (except such as is exempted) becomes, upon the death, subject to be appropriated in the manner prescribed by the statute—the personal property first, and, if that be not sufficient, then the real property, or so much of it as may be required— to the payment of debts and claims. Though the terms it uses may *56be strictly inaccurate, there is nothing to which the proviso can refer except this liability of the real estate to be resorted to for payment of debts and claims; there is nothing to which the limitation can apply but the duration of this liability. If the proviso means anything at all, — and a meaning must be given to it, if it be, as it certainly is, susceptible of one, — it means that the real estate shall not continue liable to be sold for payment of debts and claims, except where they are liens before the death, after the lapse of three years from the date of the death.

We apprehend no question would ever have been made as to this being the proper construction of the clause if it had been placed where it naturally belongs, among the provisions regulating the administration of estates, instead of among those regulating the devolution of title to real estate by descent. But as it is capable of only one meaning, that meaning must be attributed to it, wherever it may be placed in the statute. The proviso cannot be regarded as unconstitutional merely on the suggestion that a case might occur in which a creditor would lose his right of recourse to the real estate. Such a case could hardly occur without some dilatoriness on the part of the creditor.

Order affirmed.