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151 Mass. 595. So, if the administrator rents and proceeds of lands before final makes a voluntary distribution before settlement by the terms of a trust deed the statutory time expires, he is liable given by him to the heirs for their for a devastavit, and distributees receiv. security. McKinney o. Nunn, 82 Tex. ing such moneys are liable to creditors 44. therefor. Fleece v. Jones, 71 Ind. Where the order for distribution by 340. But the Probate Court cannot mistake requires the payment of too order such distributees to reimburse ex. small an amount, the distribution under penses of administration paid by the it will be valid pro tanto, and a further administrator. Matter of Keef, 43 Hun distribution ordered. Dickinson's Ap98. Where claims against the estate are peal, 54 Conn. 224. So, the failure to in litigation, the distribution will be pay a distributive share on a prelimi. postponed, Estate of Hulse, 12 Phila. nary distribution may be made up on 130 ; or funds retained for such claim, the final distribution. Grim's Appeal, in the discretion of the court, Estate of 109 Pa. St. 391. So, where distributees Bennett, 132 Pa. St. 201 ; and a partial entitled to the remainder after their distribution ordered. Curtis v. Brooks, mother's life estate have absorbed in71 III. 125. But it has been held that come belonging to her in excess of where the creditor has withdrawn his their entire shares, their share may be claim from the Probate Court, distribu- awarded to her absolutely. Estate of tion will not be postponed to await the Hamilton, 13 Phila. 200. But see, conresults of litigation in another court. tra, Hancock v. Hubbard, 19 Pick. 167. Estate of Thomson, 12 Phila. 36. And amounts paid to next of kin as Where the estate is liable for taxes, the legatees under a will, of which probate administrator must take notice of their is afterward denied, will be credited as assessment at his peril, and must pay payments on account of their distribthem before making his final settlement utive share. Kelly o. Davis, 37 Miss. 76. and distribution. McMahon v. Jones, Distribution in property. So far as 14 Abb. N. C. 406.
practicable, unnecessary conversion of In general, the right to sue for a dis- property should be avoided and distributive share accrues upon settlement tribution made in kind. Schouler on of the adminstrator's account. Matter Exrs. & 506 ; Woerner on Exrs. & 562 ; of Van Dyke, 5 Dem. 331 ; New York Williams v. Holmes, 9 Md. 281 ; Hester (Code C. P. § 1819). And even one v. Hester, 3 Ired. Eq. 9. And this is who is sole next of kin cannot sue expressly provided for by statute, in before decree for distribution in the Georgia (1882 Code, S 2584), Iowa (1888 Probate Court, Cathaway v. Bowles, R. C. $ 2438), Illinois (1891 R. S. c. 3, 13 Mass. 54; and until the rights of $ 93). So, if on settlement of the estate the parties, as well as the balance for funds are partly in gold and partly in distribution, are ascertained. Estate of paper of unequal value, the court may Ricaud, 57 Cal. 421. But the adminis- order a pro rata distribution of each. trator who makes distribution after the Lowry v. Newsom, 51 Ala. 570. But time for presentment of claims has the court cannot order distribution in expired, but before settlement of his kind of assets of doubtful value, such account, is not responsible to creditors as notes and accounts, Waterman 0. who have not presented their claims in Alden, 115 Ill. 83; and should require time. Brown v, Forsche, 43 Mich. 492. them to be collected rather than sold or And an administrator may make him- divided, Holliday v. Holliday, 38 La. self liable for immediate distribution of 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 c. 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 ad. ministrator had taken for money's loaned, and the administrator pays the share in money, he becomes entitled by subrogation to the notes. Blakely 0. 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 0. 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 I11. 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 attain. ing 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 hus. band 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, in California. Estate of Hite, Myrick's Prob. 232. But after assignment of his share to another the next of kin cannot apply for an order for distribution of specific property, Stevens v. Palmer, 15 Gray 505; nor take an appeal from the order of distribution. Tillson v. Small, 80 Me. 90. In many states, however, the assignee of a distributee may be recognized in his own name, the assignor being no longer a party in interest. Graham v. Abercrombie, 8 Ala. 552 ; Roberts v. Huddleston, 93 Ind. 173; Harrington v. La Rocque, 13 Or. 344. In California, the statute now provides for an order of distribution to parties claiming under assignment from the next of kin, Estate of Burton, 93 Cal. 459 ; Code C. P. & 1664; Matter of Phillips, 71 Cal. 285; when the assignee is before the court. Estate of Vaughn, 92 Cal. 192. So, in New York, if all the parties are before the court. Clock v. Chad. eagne, 10 Hun 97. So,.receiver as assignee of a distributive share is a proper party to the administrator's accounting. Estate of Gilligan, 18 N. Y. S. R. 812. But the assignee of an expectancy before the intestate's death is not the assignee of a distributive share. Smith v. Baylis, 3 Dem. 567.
Release. Persons entitled to distributive shares may by their agreement release to one another or to the administrator, Comer v. Comer, 120 I1I. 420 ; or even to the intestate himself before his death. Thus, where money is paid by a father to his son and receipted “in lieu of dowry,” it will be a release of the son's intestate share and bar the son's creditors. Havens v. Thompson, 11 C. E. Gr. 383.
On the other hand, a court of equity will set aside as void a release obtained by the other next of kin from an aged and infirm distributee under circumstances amounting to fraud, Rickey 0. Davis, 3 Hal. Ch. 378 ; and a release
may be revoked for mistake, Rabun o. Rabun, 61 Ga. 647; but not because the consideration for a joint release executed with other distributees went exclusively to the others. Tunnell o. Burton, 4 Del. Ch. 382. So, if the widow has relinquished her right under an order for distribution in compromise of a suit brought in equity by creditors who had failed to make due presentment of their claims, she cannot afterward seek to enforce the order for distribution against the administrator. Robbins v. Mylne, 7 Stew. (N. J.) 205. As to the construction of a release, see also Clifft v. Wade, 51 Tex. 14.
If the administrator pays distributive share without an order for distribution, he is entitled to a release for his protection. Matter of Smyley, 19 N. Y. Supp. 266. And the mere failure to explain the legal effect of the release is not a fraud upon the distributees receiving his notes in payment of their shares. Estate of Arbuckle, 16 Phila. 404.
Attachment Judgment — Lien. At common law a distributive share in the estate of an intestate could not be attached in the hands of the administrator. Brooks 0. Cook, 8 Mass. 246. And in Georgia, the administrator can. not be garnisheed for twelve months. Selman v. Milliken, 28 Ga. 366. But this rule is now changed, in Massachusetts, by statute (P. S. C. 183, § 22); and such share is subject to attachment as soon as letters are issued and adminis. tration bond filed, Mechanics' Savings Bank v. Waite, 150 Mass. 234 ; but not before. Daviso. Davis, 2 Cush. 111. Even the husband's interest in a distributive share belonging to his wife is subject to attachment. Wheeler e. Bowen, 20 Pick. 563. So, the attachment has been held to be superior to a subsequent transfer of the share to other distributees ordered by the court on account of the fact that the distribu
tee's indebtedness to the estate exceeded vided share of a vessel set off to him his share. Procter 0. Newhall, 17 in common with other distributees. Mass. 81. The attachment may, how- Rose v. O'Brien, 50 Me. 188. ever, be defeated by a prior assignment The allowance of the debt as a set-off of the share, Harrington o. La Rocque, is not, however, conclusive against the 13 Or. 344 ; and payment to the assignee distributee in another action brought before notice. Mosely v. McGough, 69 by the administrator to enforce the Ga. 748.
claim. Brady v. Pryor, 69 Ga. 691. Judgments and other liens against Execution against a third party will be the individual distributee will be pro- stayed to await the payment of distected before distribution is made to tributive shares of which he has behim. Sears 0. Mack, 2 Bradf. 394. come the owner. Rogers v. Clements, But the satisfaction of such judgment 92 N. C. 81. But an execution against on the record is conclusive in the surro- a distributee will be allowed to run on gate's court on the application of the its appearing that there is nothing due next of kin for distribution. Smith v. on his share, although an appeal is Baylis, 4 Dem 30. And after the death pending from a decision to that effect of a lunatic distributee and of the com- in the settlement of account. Scroggs mittee that had received the share, the v. Alexander, 103 N. C. 162. distribution will not be reopened in The amount of the set-off may be favor of a judgment creditor of the retained even though the share with. distributee. Hoban's Appeal, 102 Pa. held is less than the amount of the St. 404.
legal exemption from execution, Fiscus Set-off. In general, all distributive v. Fiscus, 127 Ind. 283; or although shares are subject to the set-off of debts the distributee was insolvent. Howdue by the distributee to his intestate. land o. Heckscher, 3 Sandf. Ch. 519; This is provided by statute, in Massa- or against the trustee of the distributee chusetts (1882 P. S. c. 136, § 22). If in insolvency, Gosnellv. Flack, 75 the debt is less than the distributive Md. 577 ; or although the debt has share, the appropriation of the share been discharged by the bankruptcy of to its payment is payment of the share the distributee. Sartor v. Beaty, 25 S. pro tanto and a sufficient compliance C. 293; Wilson v. Kelly, 16 S. C. 217. with the decree for distribution. So, although the distributee was Tinkham v. Smith, 56 Vt. 187. And married woman when the debt was if it exceeds the share, the unpaid incurred. Estate of Bucknor, 136 Pa. balance is assets of the estate like any St. 23. But the husband's debt will other debt. Howland v. Hecksher, 3 not be set off against the wife's share, Sandf. Ch. 519. If the administrator Stewart v. Glenn, 3 Heisk. 581 ; al. voluntarily pays a distributive share though even this has been done, where without retaining as set-off the distrib- he was entitled under the then law to utee's part of a judgment debt re- receive such share. Yohe r. Barnet, covered against him and two others 1 Binn. 358; McGee v. Ford, 13 Miss. jointly, it will be a discharge pro tanto 769. On the other hand, it has been of his part of the debt as between the held not to apply to a debt already administrator and the other judgment outlawed. Milne's Appeal, 99 Pa. St. debtors. Rudolph v. Underwood, 88 483 ; Richardson v. Keel, 9 Lea 74. In Ga. 664. The allowance of a distribu- New York, however, such a debt may tee's debt by way of set-off has been, be set off against a legacy on proof that however, refused as against his undi- the debt has not been paid. Rogers v.
Murdock, 45 Hun 30. So too, Tink. ham v. Smith, 56 Vt. 187. The debt of a child to his father may be set off against his distributive share, although he died before the father, and his children took the share, Denise v, Denise, 10 Stew. (N. J.) 163 ; but not against his share of the estate, Green o. Hathaway, 9 Stew. (N. J.) 471 ; nor at all in Pennsylvania, Ilgenfritz's Appeal, 5 Watts 25, and see p. *1377 note, ubi infra.
So, the distributive share of the debtor is subject to the set-off of a debt due by him to the intestate as executor of another estate for an unpaid legacy, Godbold v. Godbold, 13 S. C. 601 ; Wilson o. Slaughter, 53 Ark. 137 ; or as principal on a bond paid by the intestate as his surety, Sproul's Appeal, 105 Pa. St. 442 ; Eltinge o. Hull, 2 Dem. 562 ; although the payment on account of the suretyship was not made until after suit brought for the distributive share. Ransom v. Thompson, 65 N. C. 628. So, to his indebtedness to the estate for property purchased at the administrator's sale, Wilson v. Randall, 37 Ark. 74; Mahon v. Bower, 2 Miss. 275. So, an administrator (in this case an executor de son tort) may set off money paid by him to the distributee for family maintenance for a year after the intestate's death, Bryant v. Hilton, 66 Ga. 477; or for his own support during his minority. Matter of Winsor, 5 Dem. 340; Edward o. Williams (S. C.), 17 S. E. Rep. 457.
Such set-off is, in general, available against an assignee of the distributive share, Haskin v. Teller, 3 Redf. 316 ; Succession of Coco, 32 La. An. 325 ; Ford v. O'Donnell, 40 Mo. Ap. 51; Sartor v. Beaty, 25 S. C. 293. So, for the distributee's liability as surety on the administrator's bond, Bobo v. Vaiden, 20 S. C. 271 ; but it is not subject to a debt to the administrator individually. Davis v. Newton, 6 Met.
537. And the administrator's oral promise to pay the distributive share to an assignee subject to the set-off claimed is not binding upon him, where the assignee refuses to allow the setoff. Hay o. Green, 12 Cush. 282. In Tennessee, it is held that an assignment before the death of the intestate is not subject to a general debt of the distributee to the intestate except for advancements only. Steele v. Frierson, 85 Tenn. 430.
The liability of a distributee's share to the set-off of debts is binding upon his creditors also even to the extinguishment of the entire share, Cheyney's Appeal, 148 Pa. St. 142 ; Henshaw v. Whitney, 11 Gray 223. So, too, as against his share of the proceeds of lands sold by the administrator. Nel. son v. Murfree, 69 Ala. 598.
Advances by an administrator to a distributee are to be allowed against his share in distribution, Lyle v. Williams, 65 Wis. 231; even though the distribu. tee has given the administrator a note for the advances. Id. So, advances for the support of an infant distributee, Bailey v. Mundin, 58 Ala. 104 ; Munden v. Bailey, 70 Ala. 63. The advances may by special agreement also be made a charge on the share of other distribu. tees, Estate of Good, 150 Pa. St. 301, 307; or of the distributee's share in the real property. Estate of Moore, 96 Cal. 521. And the administrator's sureties are entitled to be subrogated to his right to reimbursement for advances. Stetson v. Moulton, 140 Mass. 597.
Refunding bond. The administrator should require a refunding bond from every distributee receiving payment of his share or a part of it before the time for limiting creditors has elapsed, whether the payment is voluntary, Morris v. Morris, 9 Heisk. 814 ; Moore v. Lesueur, 33 Ala. 237; or is made on an order of the Probate Court. Jones' Appeal, 99 Pa. St. 124 ; Simpson's Ap