(n) Cocking v. Pratt, 1 Ves. Sen. 400. (0) See Pooley v. Ray, 1 P. Wms. 355. Bingham v. Bingham, 1 Ves. Sen.

+ What law governs. The distribution of the intestate estate in the hands of the administrators is, in general, regulated in the United States by statutes determining the time and manner of distribution and the persons entitled to receive the estate. The right to a distributive share vests at the time of the death of the intestate. Schouler on Exrs. § 507; Croswell on Exrs. § 528; Foster v. Fifield, 20 Pick. 67; Rose v. Clark, 8 Paige 574 ; Thompson v. Thomas, 30 Miss. 153; Estate of Black, Tuck. 147; Armstrong v. Grandin, 39 O. St. 368. It follows that the distribution is governed by the law in force at the time. Woerner on Admn. § 565; Brown v Critchell, 110 Ind. 31; Paschall v. Hailman, 9 Ill. 285. But to the effect that distribution is controlled by a law passed after the intestate's death, there having been no statute before that time, see Armstrong v. Armstrong, 1 Or. 207.

Order for distribution. In general, these statutes provide for distribution of intestate estates by order of the Pro

126. Leonard v. Leonard, 2 Ball & Beat. 183. Stewart v. Stewart, 1 Rob. App. Cas. 431.

bate Court. This is generally made upon the final accounting on the application of the administrator or of any party interested, and no further demand is then necessary. Leland v. Kingsbury, 24 Pick. 315; Henry v. State, 9 Mo. 778. For particular procedure, and notice to parties and form of decree for distribution, reference must be had to the statutes and decisions of the several states determining the local practice. See also Woerner on Admn. $$ 561-62. The jurisdiction of the

Probate Court even extends to a distribution by the public administrator, although the statute directs him to pay the balance into the state treasury for future distribution. Parker v. Kuckens, 7 Allen 509. And in order to determine the amount of the estate subject to distribution the surrogate has jurisdiction, in New York, to pass upon the validity of a trust under which part of the intestate's property is held. Matter of Collyer, 4 Dem. 24. But the Probate Court has no jurisdic

tion to direct the payment of legacies, unless it is expressly conferred on it, Arnold v. Smith, 14 R. I. 217; nor, under the Texas law of " independent administration," to regulate the distribution of that part of the estate as to which a testator died intestate. Lumpkin v. Smith, 62 Tex. 249.

In California, the Probate Court having jurisdiction to order the payment of legacies, must do so before ordering a distribution of the surplus, and the latter order is conclusive against legatees, Hill v. Drew, 54 Cal. 6; but not against a legatee claiming property adversely against the estate in his own right. Estate of Rowland, 74 Cal. 523. An order for distribution is conclusive as to the distributee's rights in an action brought by him on the administrator's bond. State v. Berning, 74 Mo. 87. If it is made by mistake for too large a payment, it will not be amended for mere inadvertence of the administrator. Parker v. Townsend National Bank, 121 Mass. 565. And, on the other hand, such order is a full protection of the administrator as to distribution made by him in good faith under it, although it may be afterward modified by the court. Charlton's Appeal, 88 Pa. St. 476; Stewart's Appeal, 86 Pa. St. 149. The order for distribution cannot, however, protect the administrator against a rightful claim to a distributive share which was fraudulently concealed by him from the court. O'Neil's Appeal, 55 Conn. 409. Creditors are, in general, barred before the order of distribution is made. But, in Texas, where the estate is open for presentation of claims until distribution, they will be barred by the order. Bledsoe v. Beiler, 66 Tex. 437. In Pennsylvania, however, the order for distribution is not conclusive until it is actually carried out. Kline's Appeal, 86 Pa. St. 363.

Distribution- When made. Distribution should not be made, in general,

until the debts are paid and the surplus for distribution ascertained by account and settlement or otherwise. In New Jersey (1877 Rev. 785, § 149), the statute prohibits distribution by the administrator until one year has elapsed after letters issued. And the administrator may be required to distribute, in Alabama (1886 Code, § 2192), after eighteen months or sooner on order if estate shown to be insolvent; Arkansas (1884 Dig. Stats. § 148), after two years or sooner on order and bond given; Colorado (1891 An. Stats. § 4789), after payment of debts and legacies on order; Maryland (1888 P. G. L. Art. 93, § 140), one-third share, when needed, on order and bond given; Mississippi (1892 Code, § 1961), after twelve months; Nevada (1885 G. S. § 2919), after four months on order and bond given; New York (1889 R. S. 8th ed. 2562, § 43), after one year or sooner on order and bond given; Oregon (1892 An. Laws, § 1194), after first account on order and bond given; Pennsylvania (1883 Purd. Dig. Decedents' Estates, § 219), after one year. So, in Tennessee, there may be a decree for distribution within the statutory two years if there are no debts. Murgitroyd v. Cleary, 16 Lea 539. And in Indiana, if the estate is ample, there may be a petition for distribution before all assets are collected and all debts paid. Lilly v. Stahl, 5 Ind. 447.

When the debts have been paid, the next of kin are entitled to have the surplus distributed, although some of them may desire to have the general management of the administrator continued. Succession of Powell, 38 La. An. 181. But no suit can be brought until the debt and expenses are provided for. Alexander v. Alexander, 26 Neb. 68. And a decree for distribution of the entire personal property made within the time allowed for presentment is void as to creditors pressing their claims within such time. Browne v. Doolittle,

151 Mass. 595. So, if the administrator makes a voluntary distribution before the statutory time expires, he is liable for a devastavit, and distributees receiving such moneys are liable to creditors therefor. Fleece v. Jones, 71 Ind. 340. But the Probate Court cannot order such distributees to reimburse expenses of administration paid by the administrator. Matter of Keef, 43 Hun 98. Where claims against the estate are in litigation, the distribution will be postponed, Estate of Hulse, 12 Phila. 130; or funds retained for such claim, in the discretion of the court, Estate of Bennett, 132 Pa. St. 201; and a partial distribution ordered. Curtis v. Brooks, 71 Ill. 125. But it has been held that where the creditor has withdrawn his claim from the Probate Court, distribution will not be postponed to await the results of litigation in another court. Estate of Thomson, 12 Phila. 36. Where the estate is liable for taxes, the administrator must take notice of their assessment at his peril, and must pay them before making his final settlement and distribution. McMahon v. Jones,

14 Abb. N. C. 406.

In general, the right to sue for a distributive share accrues upon settlement of the adminstrator's account. Matter of Van Dyke, 5 Dem. 331; New York (Code C. P. § 1819). And even one who is sole next of kin cannot sue before decree for distribution in the Probate Court, Cathaway v. Bowles, 13 Mass. 54; and until the rights of the parties, as well as the balance for distribution, are ascertained. Estate of Ricaud, 57 Cal. 421. But the administrator who makes distribution after the time for presentment of claims has expired, but before settlement of his account, is not responsible to creditors who have not presented their claims in time. Brown v. Forsche, 43 Mich. 492. And an administrator may make himself liable for immediate distribution of

rents and proceeds of lands before final settlement by the terms of a trust deed given by him to the heirs for their security. McKinney v. Nunn, 82 Tex. 44.

Where the order for distribution by mistake requires the payment of too small an amount, the distribution under it will be valid pro tanto, and a further distribution ordered. Dickinson's Appeal, 54 Conn. 224. So, the failure to pay a distributive share on a preliminary distribution may be made up on the final distribution. Grim's Appeal, 109 Pa. St. 391. So, where distributees entitled to the remainder after their mother's life estate have absorbed income belonging to her in excess of their entire shares, their share may be awarded to her absolutely. Estate of Hamilton, 13 Phila. 200. But see, contra, Hancock v. Hubbard, 19 Pick. 167. And amounts paid to next of kin as legatees under a will, of which probate is afterward denied, will be credited as payments on account of their distributive share. Kelly v. Davis, 37 Miss. 76.

Distribution in property. So far as practicable, unnecessary conversion of property should be avoided and distribution made in kind. Schouler on Exrs. § 506; Woerner on Exrs. § 562; Williams v. Holmes, 9 Md. 281; Hester v. Hester, 3 Ired. Eq. 9. And this is expressly provided for by statute, in Georgia (1882 Code, § 2584), Iowa (1888 R. C. § 2438), Illinois (1891 R. S. c. 3, § 93). So, if on settlement of the estate funds are partly in gold and partly in paper of unequal value, the court may order a pro rata distribution of each. Lowry v. Newsom, 51 Ala. 570. But the court cannot order distribution in kind of assets of doubtful value, such as notes and accounts, Waterman . Alden, 115 Ill. 83; and should require them to be collected rather than sold or divided, Holliday v. Holliday, 38 La. An. 175; unless all of the next of kin

assent to a distribution in kind. Murff v. Frazier, 41 Miss. 408. Where, however, a note belonging to the intestate is transferred by way of distribution to several of the next of kin, they become holders of it in severalty, and one whose share is not paid may sue on it after payment to the others and discharge of the maker by them. Pratt v. Pratt, 22 Minn. 148. But if a distributee accepts a share of the fund, made up in part of certain securities which he knew were inventoried and accounted for by the administrator as property of the intestate, he cannot afterward claim such securities adversely as his individual property. Patterson v. Dushane, 137 Pa. St. 23. If, however, a distributee refuses to accept his distributive share in notes which the administrator had taken for moneys loaned, and the administrator pays the share in money, he becomes entitled by subrogation to the notes. Blakely v. Carter, 70 Wis. 540.

Distribution to Executor-GuardianRetainer. Where next of kin die after their intestate before actual distribution, their shares are payable to their personal representatives, Rose v. Clark, 8 Paige 574; Estate of Black, Tucker 147; Gill v. Roberts, 6 Stew. (N. J.) 474; Armstrong v. Grandin, 39 O. St. 368, Bluett v. Nicholson, 1 Fla. 385; and see Estate of Cronin, Myrick's Prob. 252; and not to their next of kin directly, McConico v. Cannon, 25 Ala. 462; and should be held until an administrator is duly appointed for the deceased next of kin. Matter of Lane, 2 Connoly 266.

Where the administrator is himself the executor of the deceased distributee, his retaining money as such will amount to a distribution and discharge his bond. Weir v. People, 78 Ill. 192. And where the deceased next of kin is one of two executors, his administrator on turning over the original estate to the surviving

executor may retain the distributive share of the deceased executor. Williams v. Mower, 29 S. C. 332.

If the distributee is an infant, the payment should be made to his guardian, and after order for distribution the administrator is liable to him for interest without any demand of payment. Henry v. State, 9 Mo. 778. But where there is no guardian, and the administrator has disbursed part of the fund in necessaries for the infant, such payments may be allowed him on a bill for accounting after the infant comes of age. Rogers v. Traphagen, 15 Stew. (N. J.) 421. If the administrator is himself the guardian of the infant, the fund is transferred to him as such by operation of law after order for its payment to the ward's account. Ruffin v. Harrison, 86 N. C. 190. But until such order he cannot by charging it to himself as guardian discharge himself as administrator or his sureties. Willcox v. Smith, 26 Barb. 316. In default of such order he is still liable to the ward as administrator on the ward's attaining his majority. Hutton v. Williams, 60 Ala. 107.

At common law payment of the wife's share to the husband is sufficient, except to the extent of a check which the husband failed to have cashed before his death. Horner v. Webster, 4 Vr. 387. But payment to the husband is generally insufficient under the recent statutes. Crawford v. Ridus, 54 Miss. 700.

An administrator cannot, however, retain and appropriate his own distributive share without order of the court or consent of other next of kin. Cutliff v. Boyd, 72 Ga. 302.

Assignment of share. In general, the Probate Court will not recognize the transfer of a distributive share so far as to order distribution to the assignee. Holcomb v. Sherwood, 29 Conn. 418; Tillson v. Small, 80 Me. 90; Knowlton v. Johnson, 46 Me. 489. So, formerly,