off for its full face against A.'s debt to the estate. Austin v. Henshaw, 7 Pick. 46. And the executor will be personally liable for such overpayment to creditors. Clayton v. Wardell, 2 Bradf.' 1. If he fails to take proper steps to have the estate declared insolvent, judgment and execution creditors may enforce their liens according to their legal priority. Dibble v. Woodhull, 4 Zab. 618. And if the executor suffers judgment to be entered against him without setting up the insolvency of the estate, he will be liable for its payment. Newcombe. Goss, 1 Met. 333; Ludwig v. Blackinton, 24 Me. 25; Howard v. Potts, Spen. 1. Claims adjudicated. In Massachusetts, the statute requires claims of the executor or administrator against the estate to be presented to the court and not to the commissioners appointed in case of insolvency, Green v. Russell, 132 Mass. 536; even after the resignation of the administrator. Newell v. West, 149 Mass. 520. And it seems that the commissioners of an insolvent estate have no authority to determine the validity of a disputed claim. Parsons v. Mills, 1 Mass. 430. In New Jersey, the Probate Court can try disputed claims against insolvent estates only. Vreeland e. Vreeland, 1 C. E. Gr. 512. And in Alabama, the exclusive jurisdiction as to claims against insolvent estates rests with the Probate Court. Clark v. Enbank, 65 Ala. 245. Commissioners of insolvent estates have no authority to determine the right of a claim to statutory preference. State v. Hichborn, 67 Me. 504. A preferred claim need not be proved before them. Bulfinch v. Benner, 64 Me. 404. And if allowed and paid by inadver. tence as a pro rata claim, it will still be entitied to full payment. Flitner v. Hanley, 19 Me. 261. But where the administrator files his own secured claim as a general claim, and disposes of the property securing it by chattel mortgage, he cannot afterward have the estate declared insolvent and his claim preferred as against the proceeds of the sale. Jenkins v. Jenkins, 63 Ind. 120. A contingent liability where the event on which the liability will take effect is wholly uncertain, cannot be proved against an insolvent estate. Bacon v. Thorp, 27 Conn. 251. So, where the note of an insolvent maker is proved and allowed for its full amount against his estate, a surety on the note cannot prove his claim against the estate on the contingency of his future payment of the deficiency. Cummings v. Thompson, 7 Met. 132. And the guarantor of a note which is not yet due will not be barred by its non-presentment, but may enforce his claim against the unexhausted balance of the estate after payment of the claims presented. Hawley v. Botsford, 27 Conn. 80. But a surety who has paid a judgment rendered against him may prove the payment against the inselvent estate of his deceased principal. Ewing v. Maury, 3 Lea 381. So, the payment by one partner for his firm as sureties of the deceased, Parker v. Gregg, 23 N. H. 416; although a surety cannot have the commission reopened on his subsequent payment of the note (which he might have paid before). Herring v. Wellons, 13 Miss. 354. A creditor may prove a claim for rent up to the time of presentment, but not for future rent. Deane v. Caldwell, 127 Mass. 242. So, a claim on an agreement for the support of a third person. Harding v. Smith, 11 Pick. 478. But interest should be reckoned on claims up to the date of the commissioner's report of allowance, Williams v. American Bank, 4 Met. 317; or up to the time of apportionment where there are different dates of allowance. Matter of McCune, 76 Mo. 200. 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 solvent the claim will not, in such case, be barred, Allen v. Keith, 26 Miss. 232; nor 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 creditors 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 v. 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 suspend 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 v. 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 e. Rousseau, 68 Ala. 564; or on the administration bond. Edwards v. 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 judgment 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 v. 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 v. 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 . Phelps, 78 Ill. 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. Of the power of preference by an executor or administrator among creditors of equal degree.t 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 against him, whether in the Queen's Bench or Chancery Of controlling the executors prefer ence by proceedings at law or in equity. Division of the High Court, such creditor must be satisfied 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 executor or administrator had notice of the commencement utor after com- of an action at law by a creditor, he was restrained from Whether an exec mencement of an action by a cred itor can voluntar- making a voluntary payment to any other creditor of ily pay another 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 + 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 executor, 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 security 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. Heslop, 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. 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). An executor can not pay in pref erence, after a de cree to account in a suit by one creditor for him. self and all others: Where a creditor of the deceased sues the executor or administrator in the Chancery Division not for his own debt alone, but for himself and all other creditors, and a judgment is obtained for an account and a distribution; this is considered as in the nature of a judgment for all the creditors (2) and after such a judgment although the 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). a creditor who has been partly paid by an executor shall not receive any further pay ment from the other creditors are paid propor court until all the It may 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 creditors a certain proportion of their debts, the court will not make any further payment to them, out of either the legal or equitable assets, until all the other creditors 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 ought not to receive any further part either of the legal or equitable assets, until the other creditors have been paid the same proportion of their debts (c). (y) Re Radcliffe, 7 C. D. 733: approved by the Court of Appeal in the late case of Vibart v. Coles, 24 Q. B. D. 364. (2) Goate v. Fryer, 3 Bro. C. C. 22. S. C. 2 Cox, 202. Paxton v. Douglas, 8 Ves. 520. Perry v. Phelips, 10 Ves. 40. Accordingly, where a creditor obtained a judgment against the executor, and on the same day a decree was made for the administration of assets, it was held that the judgment and decree ought to be deemed to have been ob 17 tained at the same moment, and the judgment creditor had obtained no priority Parker v. Ringham, 33 Beav. 535. (a) Nunn v. Barlow, 1 Sim. & Stu. 588. (b) Jones v. Jukes, 2 Ves. 518. Mitchelson v. Piper, 8 Sim. 64. Irby v. Irby, 24 Beav. 525. But in taking the account, the executor or administrator has a right to stand in the place of the creditor he has paid Jones v. Jukes, 2 Ves. 518. (c) Wilson v. Paul, 8 Sim. 63. Mitchelson v. Piper, ibid. 64. [*883] [*884] |