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. Chadeagne, 10 Hun 97. So, a 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 Ill. 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 v. Davis, 3 Hal. Ch. 378; and a release

may be revoked for mistake, Rabun v. Rabun, 61 Ga. 647; but not because the consideration for a joint release executed with other distributees went exclusively to the others. Tunnell v. 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 v. Cook, 8 Mass. 246. And in Georgia, the administrator cannot 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 administration bond filed, Mechanics' Savings Bank v. Waite, 150 Mass. 234; but not before. Davis v. Davis, 2 Cush. 111. Even the husband's interest in a distributive share belonging to his wife is subject to attachment. Wheeler . 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 his share. Procter v. Newhall, 17 Mass. 81. The attachment may, however, be defeated by a prior assignment of the share, Harrington v. La Rocque, 13 Or. 344; and payment to the assignee before notice. Mosely v. McGough, 69 Ga. 748.

Judgments and other liens against the individual distributee will be protected before distribution is made to him. Sears v. Mack, 2 Bradf. 394. But the satisfaction of such judgment on the record is conclusive in the surrogate's court on the application of the next of kin for distribution. Smith v. Baylis, 4 Dem 30. And after the death of a lunatic distributee and of the committee that had received the share, the distribution will not be reopened in favor of a judgment creditor of the distributee. Hoban's Appeal, 102 Pa. St. 404.

Set-off. In general, all distributive shares are subject to the set-off of debts due by the distributee to his intestate. This is provided by statute, in Massachusetts (1882 P. S. c. 136, § 22). If the debt is less than the distributive share, the appropriation of the share to its payment is payment of the share pro tanto and a sufficient compliance with the decree for distribution. Tinkham v. Smith, 56 Vt. 187. And if it exceeds the share, the unpaid balance is assets of the estate like any other debt. Howland v. Hecksher, 3 Sandf. Ch. 519. If the administrator voluntarily pays a distributive share without retaining as set-off the distributee's part of a judgment debt recovered against him and two others jointly, it will be a discharge pro tanto of his part of the debt as between the administrator and the other judgment debtors. Rudolph v. Underwood, 88 Ga. 664. The allowance of a distributee's debt by way of set-off has been, however, refused as against his undi

vided share of a vessel set off to him in common with other distributees. Rose v. O'Brien, 50 Me. 188.

The allowance of the debt as a set-off is not, however, conclusive against the distributee in another action brought by the administrator to enforce the claim. Brady v. Pryor, 69 Ga. 691. Execution against a third party will be stayed to await the payment of distributive shares of which he has become the owner. Rogers v. Clements, 92 N. C. 81. But an execution against a distributee will be allowed to run on its appearing that there is nothing due on his share, although an appeal is pending from a decision to that effect in the settlement of account. Scroggs v. Alexander, 103 N. C. 162.

The amount of the set-off may be retained even though the share withheld is less than the amount of the legal exemption from execution, Fiscus v. Fiscus, 127 Ind. 283; or although the distributee was insolvent. Howland v. Heckscher, 3 Sandf. Ch. 519; or against the trustee of the distributee in insolvency, Gosnell v. Flack, 75 Md. 577; or although the debt has been discharged by the bankruptcy of the distributee. Sartor v. Beaty, 25 S. C. 293; Wilson v. Kelly, 16 S. C. 217. So, although the distributee was a married woman when the debt was incurred. Estate of Bucknor, 136 Pa. St. 23. But the husband's debt will not be set off against the wife's share, Stewart v. Glenn, 3 Heisk. 581; although even this has been done, where he was entitled under the then law to receive such share. Yohe v. Barnet, 1 Binn. 358; McGee v. Ford, 13 Miss. 769. On the other hand, it has been held not to apply to a debt already outlawed. Milne's Appeal, 99 Pa. St. 483; Richardson v. Keel, 9 Lea 74. In New York, however, such a debt may be set off against a legacy on proof that the debt has not been paid. Rogers v.

Murdock, 45 Hun 30. So too, Tinkham 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 v. 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 v. 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 v. 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 v. 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 v. 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. Nelson 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 distributee 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 distributees, 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

peal, 109 Pa. St. 383; Sanderson v. Sanderson, 17 Fla. 820; Johnston v. Fort, 30 Ala. 78. A bond to indemnify against debts will cover administration expenses also, Springsteen v. Samson, 32 N. Y. 714; although the failure to require bond may not render the decree of distribution invalid. Chapell v. Shuee, 117 Ind. 481. So, a refunding bond is necessary, whether payment is made to the distributee in his own right or to another as guardian, Keith v. Jolly, 26 Miss. 131; Chandler v. Morrison, 123 Ind. 254; or trustee. Simpson's Appeal, 109 Pa. St. 383. So, an assignee may be required to give such bond, and such requirement will not excuse his neglect in collecting the share, if loss is occasioned by it. Davis v. Newton, 6 Met. 537. And the Court of Chancery may require such bond in a proper case irrespective of the statute. Estate of Palmer, 16 Phila. 261. In California, it is discretionary with the Probate Court to require bond or dispense with it. Estate of Levison,

98 Cal. 654. Without a refunding bond the administrator of a deceased guardian will be liable to the ward for a balance due on his account, although the ward had at his maturity given the guardian a receipt on which the administrator had relied. Musser v. Oliver, 21 Pa. St. 362. The statute sometimes requires such bond to be given even after the time for limiting creditors is expired, Woerner on Admn. § 560; Willeford v. Watson, 12 Heisk. 476; and it must be tendered on petition for distribution. Richmond v. Delany, 33 Miss. 83; Gammage v. Noble, 24 Miss. 150; Crosby v. Covington, 24 Miss. 619. In bringing suit on the administrator's bond for non-payment of a distributive share, the plaintiff must aver the tender of a refunding bond. Ordinary v. White, 14 Vroom 22.

Where the distribution is made on order of court and security given,

creditors must resort to the refunding bonds or to any residue of the estate not accounted for. Schaeffer's Appeal, 119 Pa. St. 640. Recovery may be had on such bond, although the deficiency is due to the failure to complete a sale of property of the estate, Lowery v. Perry, 85 N. C. 131; or to a depreciation in the value of the property of the estate. Stokes v. Goodykoontz, 126 Ind. 535. So, though the distributees received their shares in securities instead of cash. Ashurst v. Potter, 2 Stew. (N. J.) 625; Hawthorne v. Beckwith, 89 Va. 786. But not where the failure is due to the neglect or oversight of the administrator in regard to debts outstanding at the time he made distribution. Donnell v. Cooke, 63 N. C. 227. If the persons receiving the share are not entitled as distributees, they will be liable for the entire amount received, although the bond only calls for the amount in excess of their shares. v. Foulkes, 14 Lea 382.

Moss

In some states it is dispensed with, if the estate is solvent and without debts. Chambers v. Wright, 52 Ala. 444. And the failure to take such bond is not a devastavit, in Connecticut. Davis v. Van Sands, 45 Conn. 600. Where no bond is given, a distributee is personally liable to refund an excess of payment, but the liability is not a charge on his share. Wilcoxon v. Donelly, 90 N. C. 245. On the other hand, he may be excused from refunding after the value of the property taken in distribution (slaves) was destroyed by their legal emancipation, Worthy e. Brower, 93 N. C. 344; or where the payment was voluntary and the action is barred by ordinary lapse of time. Montgomery's Appeal, 92 Pa. St. 202. And, in general, without such bond or other express obligation, there is no legal liability to refund a voluntary payment, Miller v. Hulme, 126 Pa. St. 277; especially where the distributee was a married

woman, and the payment was made without her knowledge or consent to her husband, Jones v. Commercial Bank, 78 Ky. 413; although refunding of overpayments may be required by adjudication on final accounting, Estate of Grim, 147 Pa. St. 190; but not by an affirmative judgment against the distributee for the excess received by him. Echols v. Almon, 77 Ga. 330. Without any refunding bond a court of equity may compel the distributee to refund for the purpose of paying debts afterward allowed, Cutright v. Stanford, 81 Ill. 240; but not to protect a cestui que trust who has proved no

claim as a creditor against the estate, and whose funds have been mingled with those of the intestate beyond the possibility of identification, McComas v. Long, 85 Ind. 549; nor to enforce a verbal promise of the distributee to pay the debts which he had neglected to pay. Breining v. Schneider, 46 Mich. 385; nor until the creditor's remedy is exhausted against the administrator and his sureties. Tift v. Collier, 78 Ga. 194. So, distribution may have to be refunded on the subsequent establishment of a will. Sewell v. Slingluff, 62 Md. 592.