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off for its full face against A.'s debt to of the property securing it by chattel the estate. Austin v. Henshaw, 7 Pick. mortgage, he cannot afterward have 46. And the executor will be person- the estate declared insolvent and his ally liable for such overpayment to

claim preferred as against the proceeds creditors. Clayton o. Wardell, 2 Bradf.' of the sale. Jenkins v. Jenkins, 63 Ind. 1. If he fails to take proper steps to 120. have the estate declared insolvent, judg- A contingent liability where the event ment and execution creditors may en- on which the liability will take effect force their liens according to their legal is wholly uncertain, cannot be proved priority. Dibble v. Woodhull, 4 Zab. against an insolvent estate. Bacon v. 618. And if the executor suffers judg. Thorp, 27 Conn. 251. So, where the meot to be entered against him without note of an insolvent maker is proved setting up the insolvency of the estate, and allowed for its full amount against he will be liable for its payment. New- his estate, a surety on the note cannot comb o. Goss, 1 Met. 333; Ludwig v. prove his claim against the estate on Blackinton, 24 Me. 25; Howard o. the contingency of his future payPorts, Spen. 1.

ment of the deficiency. Cummings Claims adjudicated. In Massachusetts, v. Thompson, 7 Met. 132. And the the statute requires claims of the exec- guarantor of a note which is not yet utor or administrator against the estate

due will not be barred by its non-preto be presented to the court and not to sentment, but may enforce his claim the commissioners appointed in case of against the unexhausted balance of the insolvency, Green v. Russell, 132 Mass. estate after payment of the claims pre536 ; even after the resignation of the sented. Hawley v. Botsford, 27 Conn. administrator. Newell v. West, 149 80. But a surety who has paid a judgMass. 520. And it seems that the com- ment rendered against him may prove missioners of an insolvent estate have the payment against the insolvent estate no authority to determine the validity of his deceased principal. Ewing v. of a disputed claim. Parsons v. Mills, Maury, 3 Lea 381. So, the payment 1 Mass. 430. In New Jersey, the Pro- by one partner for his firm as sureties bate Court can try disputed claims of the deceased, Parker v. Gregg, 23 against insolvent estates only. Vree- N. H. 416 ; although a surety cannot land e. Vreeland, 1 C. E. Gr. 512. And have the commission reopened on his in Alabama, the exclusive jurisdiction subsequent payment of the note (which as to claims against insolvent estates he might have paid before). Herring rests with the Probate Court. Clark o.

v. Wellons, 13 Miss. 354. Enbank, 65 Ala. 245.

A creditor may prove a claim for rent Commissioners of insolvent estates up to the time of presentment, but not have no authority to determine the for future rent. Deane v. Caldwell, right of a claim to statutory preference.

127 Mass. 242. So, a claim on an agreeState v. Hichborn, 67 Me. 504. A pre- ment for the support of a third person. ferred claim need not be proved before Harding v. Smith, 11 Pick. 478. But them. Bulfinch o. Benner, 64 Ne. 404. interest should be reckoned on claims And if allowed and paid by inadver. up to the date of the commissioner's tence as a pro rata claim, it will still be report of allowance, Williams 0. entitied to full payment. Flitner v. American Bank, 4 Met. 317; or up to Hanley, 19 Me. 261. But where the the time of apportionment where there administrator files his own

secured are different dates of allowance. Matclaim as a general claim, and disposes ter of McCune, 76 Mo. 200.

t.

be

nor

Bar for non-presentment. Where a claim is not duly presented against an insolvent estate, it is forever barred, Watson v. Rose, 51 Ala. 292; or no action can be maintained without such presentment, Dillingham v. Weston, 21 Me. 263; and it is not sufficient to have proved and registered the claim without presenting it to the commissioner. Hansell v. Forbes, 33 Miss. 42 ; Greener v. Neal, 61 Miss. 204. Although if the estate proves to be sol. vent the claim will not, in such case, barred, Allen v. Keith, 26 Miss. 232 ;

as against newly found assets. Anderson v. Tindall, Id. 332. In New Jersey the statute bars claims not presented, except against the balance that may remain after payment of all claims presented (Rev. 773, § 94); but the preference accruing to claims duly presented may be lost by their acceptance of a pro rata dividend with other cred. itors who had not presented their claims. Miller v. Harrison, 7 Stew. (N. J.) 374. The bar for non-presentment applies to preferred claims as well as others, Fogg's Case, 10 Stew. (N. J.) 238; and to non-residents, McCollum v. Hinckley, 9 Vt. 143 ; and to set-offs against claims of the estate. Shelton v. St. Clair, 64 Ala. 565 ; Bell 0. Andrews, 34 Id. 538. But in Vermont, it must be shown that the commissioners appointed convenient times and places for the examination and allowance of claims. Roberts v. Burton, 27 Vt. 396. The confirmation of the commissioners' report is conclusive as a judgment against the estate in an action on the administrator's bond. State v. Bowen, 45 Miss. 550. But in Alabama, it is not conclusive on the heirs and devisees in an application to sell the real estate. Chandler v. Wynne, 85 Ala. 301. The proceeding has, however, no effect, in Massachusetts, to sus. pend the running of the special Statute of Limitations in favor of the estates of decedents, or to prolong the administra

tor's lien on the lands of the deceased for the payment of debts. Aiken v. Morse, 104 Mass. 277. On the other hand, after all claims are barred by such statute, the administrator may still maintain a bill in equity to set aside for their benefit a fraudulent conveyance of land by his intestate. Welch 0. Welch, 105 Mass. 229.

Effect on suits at law. After the estate has been declared insolvent no suit can be brought against the personal representative, in Alabama, Shiver ?. Rousseau, 68 Ala. 564 ; or on the administration bond. Edwards o. Gibbs, 11 Ala. 292. So, in Massachusetts, no suit can be brought on a rejected claim until after the commissioners' report. Ellsworth v. Thayer, 4 Pick. 122 ; Goff v. Kellogg, 18 Pick. 256. In Maine, no action can be brought against the administrator even for waste or maladministration after the estate is declared insolvent. Pattee v. Lowe, 36 Me. 138. But in New Jersey, such suits are expressly saved by the statute (1877 Rev. 773, § 95).

In New Jersey, pending suits are allowed to proceed to judgment for their pro rata share, but execution is stayed (Rev. 772, § 88). And the statute applies to an execution issued before the application in insolvency on a judg. ment rendered after the order limiting creditors, Ryan v. Von Arx, 17 Vroom 531, revg. Von Arx v. Wemple, 16 Id. 87 ; S. C. 14 Id. 154 ; or issued before the application but within the period prohibited by statute for executions. Taylor v. Volk, 9 Vroom 200. So, where application is made to the Probate Court at the time judgment is entered to have the estate declared insolvent. Union National Bank 0. Poulson, 11 Vroom 284.

In Massachusetts, judgment may be entered on the award of commissioners allowing the claim, but execution will be stayed. Greenwood v. McGilvary, 130 Mass. 516. And insolvency of the estate is a good plea to a scire facias for execution on a judgment rendered against the administrator. Coleman v. Hall, 12 Mass. 570 ; Burk 0. Jones, 13 Ala. 167.

Effect on collateral security. As to the right of a secured creditor to hold his collateral and prove his claim against the insolvent estate, different rules prevail in different states. In some he is allowed to prove his claim for its full amount, Woerner on Admn. $ 408 ; People o. Phelps, 78 III. 147 ; West v.

Bank of Rutland, 19 Vt. 403 ; Estate of Miller, 82 Pa. St. 113; if the security is given by a third person, and not by the debtor. Savage v. Winchester, 15 Gray 454. But in Estate of McCune, 76 Mo. 200, they were required to deduct the amount received on collateral even after allowance of their claims. And in most states the creditor is required to surrender his collateral on proving for his entire claim, or to deduct from his claim the value of the collateral retained. Woerner on Admn. $ 408 ; Croswell on Exrs. $ 417.

SECTION V.

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Of the power of preference by an executor or administrator among

creditors of equal degree.f The situation of an executor or administrator is frequently one of great difficulty. The law imposes on him the burden *of paying the debts of the testator or intestate in a particular order. On the other hand, it confers on him certain privileges. One of those privileges is, that among creditors of equal degree, he may pay one in preference to another (s).

But this election may, in some measure, be controlled by legal or equitable proceedings against him, of which it will be proper to take notice in this place. If one of several creditors of equal degree, suing for himself, sues

the executor or administrator and obtains judgment Of controlling the executors prefer- against him, whether in the Queen's Bench or Chancery ence by proceedings at law or in Division of the High Court, such creditor must be satequity.

isfied before the rest, and thus the preference of the executor or administrator is altogether precluded.

Before the Judicature Act the established rule was that if an execWhether an exec- utor or administrator had notice of the commencement

of an action at law by a creditor, he was restrained from itor can voluntar: making a voluntary payment to any other creditor of creditor of equal equal degree (t), but if he had notice of the commencedegree.

ment of a suit in equity and before decree he paid any particular creditor in preference, he was allowed such payment in passing his accounts (u).

Since the Judicature Act the rule in equity and not at law prevails (x), and the voluntary payment of a creditor by an executor or ad

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utor after commencement of an

by cred

another

+ See American note at end of Section IV., page *881, supra.

(8) By Abbott, C. J., in Lyttleton v. Cross, 3 B. & C. 322. Where an execu. tor, having assets of his testator, either in money or goods, before any bill filed for the administration of the estate, applied to a creditor of the testator for a loan of a sum equal to the amount of his debt: and the creditor accepted the personal security of the executor for the amount, and released the debt against the estate, it was held by Wi

gram, V.-C., that the executor having,
by such substitution of his own secu-
rity for that of the estate, discharged the
debt as against the estate, should not
be treated as a mere purchaser of the
debt, but was entitled to be allowed the
amount of it as a debt of the testator
preferred and paid : Hepworth v. Hes.
lop, 6 Hare, 561.

(t) Parker v. Dee, 3 Swanst. 531.

(u) Darston v. Lord Orford, Colles, 229.

(x)Judic. Act, 1873, sect. 25, sub-s. 11.

a .

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ministrator with notice of the commencement of an action by another creditor whether in the Queen's *Bench or Chancery Division of the High Court and before judgment is a good payment, and will be allowed to him in passing his accounts (y).

Where a creditor of the deceased sues the executor or administrator in the Chancery Division not for his own debt alone,

An executor can. bat for himself and all other creditors, and a judgment not pay in pref. is obtained for an account and a distribution; this is cree to account in considered as in the nature of a judgment for all the creditor for bim; creditors (z) : and after such a judgment although the others : legal priorities of creditors are not affected thereby (a), the power of preference, which the executor or administrator enjoys at law among creditors of equal degree, no longer exists ; for no payment to any creditor, made after notice of the judgment, will be allowed in his account (b).

It here be observed that where an executor or administrator, before a suit has been commenced for the administration of the estate of the deceased, has paid some of the been partly paid creditors a certain proportion of their debts, the court shall not receive will not make any further payment to them, out of ment either the legal or equitable assets, until all the other other

are paid proporcreditors are paid proportionably ; This point was de- tionably. cided by Sir L. Shadwell, V.-C., on the ground, that when a creditor goes into the Master's Office to establish his debt, he must show what was the amount due at the death of his debtor and *what he has received since ; and as it is one of the leading maxims of a court of equity, that equality is equity, the creditors who have been paid in part onght not to receive any further part either of the legal or equitable assets, until the other creditors have been paid the same proportion of

may

a creditor who has

an

from the court until all the

creditors

their debts (c).

:

(y) Re Radcliffe, 7 C. D. 733 : ap- tained at the same moment, and the proved by the Court of Appeal in the judgment creditor had obtained no late case of Vibart o. Coles, 24 Q. B. D. priority: Parker v. Ringham, 33 Beav. 364.

535. (2) Goate o. Fryer, 3 Bro. C. C. 22. (a) Nunn v. Barlow, 1 Sim. & Stu. 588. S.C. 2 Cox, 202. Paxton o. Douglas, (6) Jones v. Jukes, 2 Ves. 518. Mitch8 Ves. 520. Perry o. Phelips, 10 Ves. elson v. Piper, 8 Sim. 64. Irby v. Irby, 40. Accordingly, where a creditor ob- 24 Beav. 525. But in taking the account, tained a judgment against the executor, the executor or administrator has a right and on the same day a decree was made to stand in the place of the creditor he for the administration of assets, it was has paid : Jones v. Jukes, 2 Ves. 518. held that the judgment and decree (C) Wilson v. Paul, 8 Sim. 63. Mitchought to be deemed to have been ob- elson v. Piper, ibid. 64.

17

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