#### The Administrators of Ferdinand Ernst, deceased, Appellants, v. Mary Ann Ernst, Appellee.

APPEAL FROM FAYETTE.

A debt due to the state bank is a debt due to the state, which the state can release.

Opinion of the Court by

Justice Smith.

The bill in this case alleges that the intestate, in the year 1822, died indebted to the state of Illinois, and to the state bank, in the sum of twenty-two hundred and thirty-two dollars, as by reference to the records of the said county, and to the records of the circuit court of Fayette county, will appear. That the intes*317tate died seized of certain real estate enumerated in the bill, and other interests in certain town lots in Vandalia, and public lands purchased by him of the United States.

That the legislature of this state at their session of 1828, passed an act releasing the said intestate’s estate from the payment of such debts, and did direct the administrators to sell the same lands, and to pay the avails thereof to the complainant. That the administrators, disregarding such law, have applied to the circuit court aforesaid, to grant an order to sell such lands for the benefit of the common creditors of the said intestate, and refuse, when the same are sold, to apply the avails thereof to her, as she alleges she is entitled to them, under the provisions of the aforesaid law.

The bill designates what part of the lands were mortgaged to the bank, and the two lots, 4 and 8, are the ones on which the indebtedness of Ernst accrued, and were the consideration of the note on which the judgment was founded. The answer recites an account of the disposition of the personal estate of Ernst, and alleges that there are debts due and unsatisfied to an amount of nearly twenty-eight hundred dollars.

It also alleges, that by an order of the circuit court of Fayette, the lands described in the complainant’s bill were, at the preceding term of the said court, ordered to be sold for the payment of the debts of the said Ernst; that they have been sold on a credit.

That the title of the said Ernst was not complete to a portion of the property sold by them, but which part is not designated, and they, therefore, sold only his interest therein; they allege that the law is unjust, and not binding, and pray that whatever decree is made, may be made with reference to such portion as the title was incomplete to.

Tfie circuit court decreed, that out of the proceeds of the sale of such property, the appellants should pay to the complainant, when collected, the sum of seven hundred and forty-two dollars and eighty-eight cents, being the proceeds of the sales of said property after deducting the expenses thereof. To reverse this decree, the present appeal is prosecuted.

To a correct determination of this question, it will be necessary to premise, that by a decision of this court, in an action prosecuted against the administrators of Ernst, by the state bank, and for the very debt due by mortgage, it was determined that a debt due to the bank, was a debt due to the state, and that under the provisions of the recited act, the debt thus due by Ernst, was released. By the provisions of *318that act* the state released the estate of Ernst from the payment of any debts due the state, and transmitted all their interest therein to the complainant. How far it was competent for them to authorize a sale of all the real estate and equitable interests of the intestate in lands, to be appropriated to the contemplated beneficent objects of the statute, is worthy of consideration.

The phraseology of the act is general, aiid includes all the lands and equitable interests of the intestate therein, except parts of sundry lots contracted to be conveyed before the death of the intestate. It must readily be perceived the state could not, rightfully, authorize the sale of the estate of the intestate, for the purposes expressed in the law, only so far as the state had a legal interest in them. This interest no where appears in the act itself, but the allegations of the bill show, that to a portion of it the bank held a mortgage, and to another portion the state had the title in itself. So far, then, as the bank had a lien by mortgage, and to as much as the fee in the lands was in the state, no doubt can remain of the power of the state to order the sale, and direct the appropriation of the proceeds of the sale to the benevolent purposes intended by the passage of the law. It does not appear from the proceedings, that any of the lots enumerated in the bill, are the parts of sundry lots contemplated in, and excepted from sale by the second section of the act. If such were the fact, the appellants should have shown it in their answer, to have exempted them from the operation of the decree.

They, however, only aver, that to a portion of the -property sold, the intestate had no legal title, and that they only sold the interest of the intestate, and ask, therefore, that the proceeds of such parts, without specifying what parts in particular they are, be exempted from the operations of the decree. It is not perceived that the decree, from an inspection of the proceedings themselves, which are in many particulars too general and indefinite to a critical understanding of the rights of the parties, is not warranted by the state of facts presented by the bill and answer, except in appropriating the proceeds of the sale of the three quarter sections of land purchased of the United States, on which the first installment has only been paid. These appear to have been sold for the sum of one hundred and five dollars, and ought not to have been included, and for so much, the decree is, necessarily, erroneous.

*319But to the remainder, it seems that any other decision would involve a construction of the act of 1823, at war with its whole spirit and manifest intent.

The proceeds of the property can not be supposed, upon any principle of justice or right, to have been intended to revert to the creditors of Ernst in common. The state has furnished the fund, and had a clear right to direct its appropriation ; and from the moment of the passage of the act, the administrators must be considered as vested with the interest of the state, in the lands mortgaged to the bank, and that, to which the state had not parted with its title, as trustees for the complainant. The vesting of the lands in the administrators for the purposes of sale, and the release of the debt, are contemporaneous acts, and although, as to the intestate, the debt was released, the lien on the mortgaged lands was not thereby released.

The law never contemplated, even if the lots, to which the intestate had no more than an equitable interest, are the parts of sundry lots authorized to be conveyed by the administrators, and which have not been conveyed, because the individuals to whom they were sold by the intestate have not complied with their agreement, should be sold by the administrators, and the proceeds thereof appropriated to the payment of the claims of the common creditors, because the state never could have contemplated such an act of extraordinary generosity as to appropriate its own property to the payment of the debts of any individual. Neither the letter nor spirit of the law warrants such an inference.

The court are, so far as they can consistently with the language of the statute, bound to give it such an exposition as will best carry its intentions into effect. This can only be done by giving to the complainant the benefit of the proceeds of the sales of the property, as made by virtue of the order of the circuit court, with the exception of the three quarter-sections named.

The judgment or decree of the circuit court, for the sum of eight hundred and seventy-three dollars, sixty-six cents, to be recovered of the defendants in the court below, is affirmed, to be paid out of the proceeds of the sale of the property named in the bill, excepting the N. E. qr. 24, 6 N. 1 W., S. E. 12, 6 N. 1 W., N. E. 36, 7 N. 1 W., which sold for 105 dollars; and so much of the decree as directs the proceeds of these lands to be paid to the complainant, is reversed. The costs of the appeal to be divided between *320the parties, and judgment entered in conformity to this opinion.*

Brown, for appellants.

Cowles, for appellees.

*

Laws of 1823, p. 178.

*

Wilson, Ch. J., dissented from this opinion, and Lockwood, L, gave no opinion.