delivered the opinion of the court.

"We adopt the theory of the appellant and accept as true that H. W. Vick, as trustee, was surety on the obligation to Pucks, administrator of Marr, and that he used trust funds to pay it, and that he thereby became a creditor of the estate of H. G. Vick, deceased, for the amount he paid. There is much probability in the suggestion of the appellee that H. W. Vick did not consider himself a creditor of H. G. Vick’s estate or intend to occupy that attitude, and that he regarded the debt as extinguished. It is useless to mention the circumstances which support this view, since we adopt the appellant’s theory of the transaction and reach our conclusion from her standpoint. The transaction mentioned was had in November, 1859. The slaves and other personal property of H. G. Vick’s estate were employed by Pindell, executor of his will, during the year 1860, on the plantation devised to the appellee, and at the close of that year this plantation was surrendered to the appellee, and the slaves and other personal property of the testator were delivered to H. W. Vick, who had a life estate in it and who was trustee of a large amount of other property for the appellant and her brother, who has since died, under a contract with the executor to pay to him one-third of the products of all the property on Nitta Yuma plantation cultivated by H. W. Vick, trustee. About three thousand dollars’ worth of the personal property of H. G. Vick, deceased, was delivered to H. W. Vick as residuary legatee, who receipted the executor for it some time before the contract of hiring mentioned, which was for the year 1861. The value of the personal property delivered to H. W. Vick was nearly seventy thousand' dollars. The debts of H. G. Vick were trifling in amount compared with this estate. The pecuniary legacies were for ten thousand dollars each to Pindell and his wife, and Pindell, who was executor and legatee, put the slaves and other personalty in possession of H. W. Vick, upon his agreement to deliver to Pindell one-third of the products of the Nitta Yuma plantation, which was looked to as the means 'of paying any remaining debts of the estate and the pecuniary legacies of Pindell and wife. This was practically a closing of his admin*716istration of the estate of H. G. Vick by Pindell, as executor. H. W. Vick being trustee of a large amount of other property for his children, Mary B. and George C., and having a life estate -in all the property of H. G. Vick not specifically devised, accepted the property, agreeing to account to Pindell, executor, for one-third of the products of Nitta Yuma plantation, on which were worked the property held in trust by him as well as the personal property received from H. G. Vick’s estate. He preferred this arrangement to selling personal property or land to pay debts. The personal property was ample to pay debts and legacies, and besides this there was land of H. G. Vick to the value of many thousands of dollars, not including the special devise to the appellee. Instead of proceeding to sell personalty or land, if that was preferable, to pay debt's, H. W. Vick, who was creditor, assented to the arrangement, by which he became the holder of the large estate to which he might have resorted to obtain payment of his demand on terms satisfactory to him. Whether he held the claim individually or as trustee is not material, since the deed of settlement which constituted him trustee and agent invested him with discretionary power as such in the management of the property committed to his charge. He forbore to urge his demand and preferred the arrangement mentioned, which suited all concerned. The appellee was let into possession of her devise and saw the ample personalty of the estate parceled out as suited those interested in it. It was not for her to eomplain, as those interested were satisfied, and she had got the provision made by the testator for her. If H. W. Vick had lived he would not have been allowed, after the destruction of the personal property and the depreciation of the land of the estate of H. G. Vick, to demand a sale of the laud devised to appellee. He would have been concluded by his own action, and estopped from resorting to the special devise by his laohes as a creditor, in not securing payment, and instead thereof bargaining for the property on terms acceptable to him and the executor. On the death of H. W. Vick all his rights were vested in the appellant and her brother, who has since died, and now she is the sole heir and distributee of H. W. Vick, but she took the claim which is sought to be enforced *717in this suit just as it was held by him, and as he could not enforce it she cannot. The insufficiency of the estate to pay debts is traceable directly to the act of the creditor himself, and he would not be allowed now to have payment out of the devise to the appellee. The settled law of the State is that if the personal estate is insufficient at the time of the application to sell land to pay debts, it may be resorted to after exhaustion of legal remedies against the executor or administrator and sureties if he is in fault (or by statute upon proof of insolvency or non-residence. Code of 1880, § 2041), but it has never been held that a creditor, who, instead of enforcing his legal right, has made an arrangement with respect to the property of the estate to which he had the right to resort for payment, and relied on that for payment instead' of enforcing his legal remedy, could, when his own arrangement failed, afterward fall back on his original legal right. Tt would be inequitable in this case to permit it, and we will not.

Decree affirmed.