ORMOND, J.
The question to be determined, depends on *63the construction of the statute. The portion of the act immediately applicable, is in these words: “Nor shall any suit or action be commenced or sustained against him'(the executor or administrator) after the estate of the testator or intestate be represented insolvent. The counsel for the plaintiff in error, maintains that the “representation” of the executor or administrate!’, which will have the effect to prevent the commencement of a suit, or to abate one already commenced, must be both of the real and personal property of the 'deceased.- — ■ "The language of the act is, “that when the estate, both real and personal, of any person deceased, shall be insolvent or insufficient to pay all just debts which the deceased owed, the said estate, both real and persona], shall be distributed to and among all the creditoi's respectively, due and owing, saving, &c. And the executor or administrator shall exhibit to the Orphan’s Court or Chief Justice thereof, (before any debt paid to any creditor, except as aforesaid) an account and statement as is directed in the twenty-eighth section of this act, including also the lands, tenements and hereditaments of the testator, or intestate.” Aik. Dig. 151. The twenty-eighth section of the act here referred to, was not incorporated in the Digest compiled by Mr Aikin, it being as he says, in a note, superseded, and therefore omitted, but as it is referred to in the section just •cited, it must be looked to,^.o ascertain what the administrator is required to'do. The 28th section provided that where an executor or administrator believed that the personal estate of his testator or intestate was insufficient to pay the debts of the deceased, he should “ make and exhibit on oath, a just and true account of the personal estate and debts, as far as he could discover the same, to the Orphan’s Court;” whose duty it should be to cause citation to issue; &c. Toulmin’s Dig. 327, sec. 28. The law previously cited, is a part of the same act, and its obvious design was to provide a new mode for the‘distribution of the effects of a deceased person, when both his real and personal property was insufficient to pay all his debts. Instead of the common law mode, which then existed, (in 1803) the act provided for an equal distribution among all the creditors, except debts due for the last sickness, and the necessary funeral expenses, rateably. Although the 28th section before cited, was obviously designed to enable the executor or administra*64tor to represent an estate insolvent, when the personal property was insufficient to pay all the debts, it did not contemplate necessarily a rateable distribution among all the creditors as the whole estate, real and personal, might be sufficient for that purpose. But we apprehend that in either case, whether the personal estate alone was insufficient to pay the debts, or the whole estate insolvent, the executor or administrator has. the right to report the estate insolvent; and that upon such representation, all suits pending against him abate. If it were not so under our system, an executor or administrator acting with the most perfect good faith towards the creditors, might be ruined. He could not plead plene administravü, because the real estate is by law made a fund for the payment of the debts of the estate, and it would frequently be impossible for him to know whether the estate was wholly insolvent or not, as that fact could only be certainly ascertained by a sale of the real estate.
Although the 28th section was not in terms re-enacted at the compilation of the new Digest, its provisions are in force from the operation of the act of 1822, (Aik. Dig. 180, sec. 16) which authorises the executor or administrator to petition the County Court for the sale of land, for the purpose of paying debts.. — ■ Such was clearly the opinion of the digester, and doubtless adopted by the legislature.
The appropriate and natural fund for the payment of debts, is the personal estate; nor has the personal representative of the deceased, as such, any control over the realty, until the estate is reported insolvent. We think it, therefore, clear, from the legislation on this subject, considered altogether, that if the executor or ardministrator has reason to believe that the personal estate is insufficient to pay all the debts, it is his duty to represent the estate insolvent; and'that the effect of such representation, duly certified from the County Court, is to abate all suits then pending against him. No prejudice can result to creditors from this course; if the estate is not wholly insolvent, their debts are to be paid entire; and to prevent any unnecessary delay, if the executor or administrator having reported an estate insolvent, should omit for three months to apply for an order to sell the real estate, he is guilty of a devastivit, and may be sued on his bond. Aik. Dig. 150, sec. 17.
Let the judgment be affirmed.