vs. Ramsey, 1 Cr. C. C., 496; Lynch, ex'r, vs. Yeaton, 3 Ibid., 482; Black vs. Wilder, 1 Atk., 420; Brooks vs. Brooks, 12 G. & J., 306; Nelson vs. Bank, 27 Md., 69, 1 Story Eq. Jurs., §§ 531, 547, 548, 551, 552; Moses rs. Murgatroyd, 1 John. Ch., 130; Codwise vs. Gelston, 10 John., 522.

The money, being equitable assets in the custody of the court for the especial purpose of paying the just debts of the intestate, will, by relation back, be considered by the court as converted into assets from the date of the decree, and this because such a retroactive operation "is required to advance the purposes of equity." Belts vs. Wirt, 3 Md. Ch. Dec., 113. This is with the rule of the common law which gives judgments entered during the term, relation back to the beginning of the term.

It will be found, upon an examination of the authorities cited in the brief in opposition, that the parties in each case mentioned, were proceeding directly against the realty for their own advantage. In this case, the petition of this creditor was filed, after the conversion, in contemplation of equity, of the realty into equitable assets. The equity court was bound to convert this realty into assets to pay the debts, because every man's property, real as well as personal, is bound for the payment of his just debts. After the conversion, the only question as to this creditor, was, whether or not her judgment debt was a "just" one. She did not pray for a sale of realty, because the sale had already been made; she could only ask for an application of a fund, created by the court for that purpose, to the payment of the debt due her.

"In equity, money directed to be laid out in land, will, before investment, be considered as land; and land directed to be sold and converted into money, will, before sale, be considered as money, and pass as such." Leadenham vs. Nicholson, 1 H. & G., 267.

The plea of the Statute of Limitations in this particular case should not be regarded with favor. The action at law was instituted long before the statute had run. The default of the guardian or the breach of the bond was not declared

until the 2d day of April, 1880, when he rendered his final account, showing a balance due to his ward of $5,194.25, and the action was instituted on the bond on the 9th of the same month. If the intestate had not died, there would have been no obstacle in the way of making his realty respond. Can a just debt be cancelled by the death of the debtor who leaves a large estate in realty? Will a court of equity go out of its way to uphold such a doctrine? The Court of Appeals of Maryland, in a kindred case, and upon this very subject of the accident of death, uses the following language:

"If relief in the mode in which he has now sought it be denied to the appellant, he is wholly without remedy. And what is it that has placed him in this lamentable condition? The simple accident that, before payment of his claim has been ordered, and notice given and demand made, the trustee has departed this life. To place himself in a condition to assert his rights in a legal forum has, by that accident, become impracticable. Can a stronger case than that now before us, for the interposition of a court of equity upon one of its well-established heads of equitable jurisprudence, be well imagined?" Brooks vs. Brooks, 12 G. & J., 320.

The statute laws in force in this District are ample to prevent the abatement of actions at law, and to carry them on for or against administrators. See Thompson's Digest, 1, R. S. U. S., sec. 955.

2. Should the court feel bound to sustain the position taken in behalf of the heirs-at-law, then this creditor is entitled to all the assets in the hands of the administrator; or, in other words, she is entitled to have the funds marshalled, and to have the $1,206.44 in the hands of the administrator wholly applied to the payment of her judgment.

This is upon the well-known principle of equity, that where some of the creditors of an estate may resort, for the satisfaction of their debts, to either of two or more funds, whilst others are confined to one only, a court of equity will marshal the funds and thus enable those who are confined to one fund to receive due satisfaction. Equality is equity. 1 Story's Eq., §§ 547, 557, 558, 559.

EDWARDS & BARNARD for defendant:

1. The claim of the petitioner is not sustained by any competent proof.

The allegations in the petition, and the short copy of the judgment against John Hitz showing also a finding of the jury against the administrator of Florian Hitz, for the amount stated, attached to said petition as an exhibit, are relied on by the petitioner to establish her claim against these infant heirs.

This proceeding is controlled and governed by the local law of the District of Columbia.

That law makes the proceedings against the administrator and the heir, when the latter proceeding is necessary, entirely independent of each other. The duties of the administrator are confined to the personal estate, and never beyond it. If that be insufficient to discharge the debts, and it be necessary to resort to the realty of the deceased for that purpose, a proceeding against the heir must be instituted. In that event, whatever has been done by the administrator is without effect as to the property sought to be charged. A judgment against the administrator is not evidence against the heir. The demand must be proved in all respects as if there had been no prior proceedings to effect its collection; and the Statute of Limitations may be pleaded with the same effect as if there had been no prior recovery against the personal representative. Ingle vs. Jones, 9 Wall., 495; Keefe vs. Malone, 3 Mac Arthur, 236; Drummond vs. Green, 35 Md., 148; McDowell vs. Goldsmith, 24 Md., 214; Collison vs. Owens, 6 G. & J., 4; Duvall vs. Green, 4 H. & J., 270; Byerly vs. Staly, 5 G. & J., 432; Warfield vs. Welch, 3 G. & J., 259.

The original bond of the petitioner's guardian is the foundation of her claim in this proceeding against the heirs. of one of the deceased sureties. This bond is not now produced, or a duly certified copy thereof filed or offered in evidence, or the absence of the original in any manner attempted to be explained or accounted for; nor is there any evidence that it was approved by the court or register as required by

law. No administration (guardian) bond is binding unless first approved by the court or register. Md., 1798, ch. 101, sub-ch. 3, sec. 1; Crawford vs. The State, 6 H. & J., 231.

2. The plea is good, and should be sustained.

"All actions upon administration and testamentary bonds shall be commenced within twelve years after the passing of the said bonds, and not after." Md., 1729, ch. 24, sec. 21.

"Nothing in this act shall be construed to bar any person within the age of twenty-one years, feme covert, non compos mentis, or imprisoned, or persons beyond seas, from bringing an action or actions within six years after their coming to or being of full age, uncovert, sound memory, at large, or returned from beyond seas, upon any administration or testamentary bond." Ib.

By the testamentary act of 1798, chap. 101, sub-ch. 12, sec. 4, it is provided that the bond of a guardian "shall be recorded, and be subject to be put in suit, and be in all respects on a footing with the bond given by an executor or administaator."

A guardian's bond, as respects the plea of limitations, is, by the act of 1798, ch. 101, sub-ch. 12, sec. 4, placed on the same footing with testamentary and administration bonds, and the term within which suits must be brought on guardian's bonds, according to the act of 1729, ch. 24, sec. 2, is twelve years after the passage of the bonds. The State vs. Green, 4 G. & J., 381.

This bond is dated April 20, 1869, and the statutory period within which an action thereon could be brought expired April 19, 1881. The petitioner attained her majority September 28, 1874, and she had, under the law, six years thereafter within which to bring her action, viz., until September 27th, 1880, even if the bond had been of more than twelve years standing when she became of age, and competent to sue; the six years exemption in her favor having expired before the bond became functus, she had until April 19, 1881, within which to bring her action thereon. She brought suit against the deceased surety in his lifetime, while the bond was in force, to wit, April 9,

1880, which abated by his death before judgment, and was not revived against his administrator until July 14, 1881, some time after the bond was extinct.

The claimant's petition, however, was not filed in this cause until October 26, 1882, which, under the authority, so far as concerns the heirs, was the commencement of the action; this was more than twelve years "after the passing of the bond," and is barred by the express language of the

statute.

The statute runs down to the time the claim is filed in the cause, that being regarded as the time of the commencement of the suit with respect of such claim. Hall vs. Ridgely, 33 Md., 318; Abrahams v. Myers, 40 Md., 499; Ohio Life Ins. and Trust Co. vs. Winn & Ross, 4 Md. Ch. Dec., 252; McDowell vs. Goldsmith, 2 Md. Ch. Dec., 370. (Affirmed in 6 Md. Rep., 319.)

This being the law, it is immaterial whether the petitioner was born September 29, 1853, or on the same day and month in 1855. In either event the statute was a bar to her action commenced, as stated, October 26, 1882. In the one case the claim was barred April 19, 1881, in the other, September 28, 1882.

3. The exceptions of the petitioner should be overruled, and those of the defendants sustained, and the petitioner declared not entitled to receive any portion of the proceeds of the sales not awaiting distribution.

The principal points raised by petitioner's exceptions are: First. That she is a judgment creditor of Florian Hitz, deceased, and entitled to priority in the settlement of her claim over that of the National Metropolitan Bank, because the latter is a mere simple contract creditor.

Second. Because the assets of said deceased surety, including the proceeds of the sales of the real estate, are not marshalled, so that in case she be not entitled to participate in the distribution of the proceeds of said sales, she is then entitled to be paid in full out of the funds which came into the hands of the administrator.

The first point is clearly untenable. A judgment for