These  were  incumbrances,  for  the  removal  of  which  he  ought  to  have  credit
upon  the  amount  of  the  rents.  But  the  insurance  paid  upon  the  property
stands  on  a  different  footing.  He  insured  the  property  voluntarily  and  for
his  own  protection,  and  while  he  was  holding  and  treating  the  property  as  his
own.  We  see  no  equity  in  allowing  him  a  credit  for  this  expenditure.  The
balance  due  to  complainant  will  bear  interest  from  the  filing  of  the  bilL

The  only  remaining  question  is  as  to  whether  the  enhanced  value  shoiild
be  paid  by  the  administrator  or  the  heirs  1  It  cannot  be  regarded  as  a
debt  against  the  administrator.  The  liability  arose  upon  the  election  of
complainant  to  avoid  the  contract,  and  it  is  a  liability  arising  out  of  no
default  on  the  part  of  the  intestate  or  his  administratrix.  For  all  we  can
see,  the  intestate  was  ready  at  any  time  to  make  title  if  complainant  had
entitled  himself  to  it  by  tendering  or  paying  the  purchase-money.     Not

1  ^Heisk.  128.  >  8  Head,  176.
SSCT.  n.]  SMITH  V.  DRAKE,  311

electing  to  do  this  during  the  lifetime  of  the  intestate,  and  only  making  his
election  to  avoid  the  contract  after  the  legal  title  had  descended  to  the
heirs  of  the  intestate,  at  which  time  his  equitable  claim  for  compensation
came  into  existence,  we  think  it  clear  that  the  liability  attaches  to  the
property  itself  out  of  which  it  sprung,  and  that  it  cannot  be  viewed  as  a
debt  of  the  estate  to  be  paid  by  the  administratrix.  The  real  estate  and
not  the  personal  is  benefited  by  the  improvement,  and  equity  necessarily
fixes  the  liability  for  the  benefit  on  the  real  estate.
With  the  modifications  indicated,  the  decree  of  the  Chancellor  is  affirmed.
