D. Thompson against Tappen and Wife.
August 31st.
This Court cannot interfere with the law of descent of real property, or the established order of distribution of personal property, for' the purpose of shifting the burden of paying the debts of the intestate, from the personal to the real estate, or to correct any alleged hardship or inequality produced by the law.
THE bill stated, that James Thompson, deceased, a brother of the plaintiff, came to the United Stales, an alien, in 1798, and wan naturalized in 1813. That Alexander Thompson, deceased, a brother of the plaintiff^ came to the United States, a?i alien, in 1803, and was naturalized in 1810. That the plaintiff coxae to the United Stales in 1804, *519an alien, and still remains an alien. That William Thompson, a brother of the plaintiff, came to the United States, an alien, in 1816, and is still an alien. That Ann, a sister of the plaintiff, came to the United States an alien, in 1818 and still remains an alien. That J. and A. Thompson, in 1813, entered into partnership, as distillers, in New-York, and continued partners until the death of Alexander T. on the 30th of January, 1818. That while partners,they acquired a considerable estate, the greater part of which was vested in real property in their joint names. That they purchased in 1816, real property in Cherry and Batavia streets, including their distillery, and paid therefor 10,250, dollars, and took a deed in their joint names, and they borrowed from John Pirnie, money towards payment for the land in Cherry and Batavia streets, on their joint notes, and afterwards secured the payment thereof by a bond and mortgage. That in 1817, J. atid A. T., out of the profits of-their joint concern, purchased another real estate in fee, in Orange and Cross streets, for which they paid 8,000 dollars, and upwards, and took a deed to them jointly, in fee. That A. T. died intestate, the 30th of January, 1818, leaving a wife still living, but no issue, and-three brothers, (one of whom was the plaintiff,) and a sister. That the plaintiff and James T. then entered into, and' continued their partnership, as distillers, until the death of James T., on the 12th of July, 1818. That James T. died intestate, leaving Sarah, (defendant,) his widow, and leaving two children, and two brothers, (one of whom is the plaintiff,) and a sister. That administration of the goods of Alexander T-, was granted to his widow and the plaintiff. That the plaintiff acted faithfully as administrator, and also managed the estate of James T., after his death, with the approbation of Sarah his widow, who was his administratrix. That James and Alexander T. on the 22d of August, 1817, in order to take, up the notes given to John
*520
Pirnie, for moneys to pay for the lands in Cherry and Batavia streets, and for some other small sums due to him, gave him jointly, a bond and mortgage of the ]anj3 jn Orange and Cross streets, to secure 4,500 dollars. That the plaintiff paid to John P. the interest of the mortgage. That the widow and children of James Thompson, claim not only their father’s moiety, so purchased by Alexander and James 21, in the said real estate, but also, the moiety of Alexander T. in the said real estate- (as the plaintiff and his brother and sister are aliens,) subject to his widow’s dower. That the plaintiff is obliged to acquiesce in that claim. That the defendant Sarah, also, insists, that the personal estate of Alexander T. shall be taken, and applied towards satisfaction of the bond and mortgage, so as to disencumber the real estate of the said Alexander T. in which the plaintiff and his brother and sister have no interest, but are excluded, because they are aliens ; and which exclusion does not apply to the personal estate. That the plaintiff has adjusted the partnership concerns of Alexander and James 71, so far as to ascertain that whatever sum remains in the hands of the plaintiff, it is not sufficient to pay to the plaintiff, William T. his brother, and Ann his sister, and the widow of Alexander, T. their distributive shares of the personal estate of Alexander T., after paying his debts, exclusive of the bond and mortgage debt aforesaid, which bond ought to be paid by the persons entitled to the real estate of Alexander 21, from which the plaintiff, and his brother and sister, are excluded. That the defendant is attempting, by a suit at law, to force the balance of the moneys of Alexander T. out of the hands of the plaintiff, to be applied towards payment of that bond to John Pirnie, and thereby applying the personal estate of Alexander T„, in which the plaintiff has an interest, to disencumber his real estate, in which the plaintiff has no interest; and the defendants have commenced an action against the plaintiff for such balance.
*521Prayer, for an injunction to stay the suit at law, and for general relief.
Bogardus, for the plaintiff, now moved for the injunction.
P. W. Radclijf., contra.
He cited 3 Johns. Ch. Rep. 312. 257. 1 P. Wm. 291. 1 Atk. 487. 1 Madd. Ch. 477. 3 P. Wm. 359.