Parker, Administrator, Appellant, v. the Administrator of Amos Whiting, 6 Howard 352

Mr. Chief Justice Sharkey stated the case, and delivered the opinion of the court. The counsel for the appellant insists that according to a fair

interpretation of the statutes, an administrator cannot report an estate insolvent after the expiration of nine months, that being the period within which an administrator cannot be sued, and that this length of time is allowed in order to enable him to ascertain the condition of the estate. That this suit having been brought long after the expiration of the term of nine months after the grant of administration, the judgment became a lien on all the property of the estate and cannot be defeated.

The provision of the statute which has a direct bearing on the question is that part of sec. 103, Revised Code 58, which declares that no suit or action shall be commenced or sustained against the administrator after the estate is reported insolvent, except for debts due for the last sickness and funeral expenses. By the first

section of an amendatory act, Revised Code 70, it is provided that in case a suit be pending against an administrator at the time the estate is reported insolvent, the same shall not abate or be dismissed in consequence of the insolvency, but may be prosecuted to judgment, but no execution can issue on the judgment, but the same may be filed as evidence of a debt against the insolvent estate.

There is no direct provision as to judgments recovered before the report of insolvency, and yet it must be manifest that such a case falls within the spirit of the statutes, so as to prevent the plaintiff from making his judgment effectual by having it executed after a report of insolvency. To prosecute his execution is in effect to prosecute a suit.

If then an estate is reported insolvent after judgment and before execution executed, it is competent for the court from which the execution emanated to stay the execution, in the same manner that it would stay an execution in a suit brought before and judgment recovered after insolvency under the last mentioned act. The judgment lien is then held in abeyance, or must give way to the general and equal lien of all the creditors, for they all become equally entitled to their respective shares of the proceeds, the moment an estate is reported insolvent.

The question then arises, is the report of insolvency in the present case conclusive on the judgment creditor, or may he proceed notwithstanding to have his judgment satisfied. On this branch of the subject it is contended that the court should have heard the proof which was offered to show that the report of insolvency was improperly made. The application to introduce this proof was made on a

summary proceeding by motion, which was to be decided by the court. The court was to decide on the sufficiency of the evidence, and as it was refused to be heard, we must infér that if it had been heard the judgment would not have been different. The court was advised of the facts intended to be proved, and the object of proving them. We can not therefore say that it was error to reject the testimony, as we might if it had been offered for the consideration of the jury.

But we may consider the case as though the testimony had been received, and then it must turn on the propriety of the judgment on the facts set out in the bill of exceptions, and this involves the inquiry at what time an estate may be reported insolvent and the effect of such report. From a part of the first

section referred to it is manifest that the administrator was exempted from suits for a given time, in order that he might ascertain whether the estate was insolvent or not, and in good faith he should make such a report as soon as he can ascertain the fact; but there are other provisions of the law which have a material bearing on his duty and powers in this particular. The administrator is to judge of the solvency of the estate by comparing its probable value to the amount of claims legally presented.

Creditors within the state have eighteen months allowed them to present their claims; foreign creditors have three years. It is therefore often impossible for an administrator to ascertain the true condition of an estate until the expiration of the time allowed for presenting claims; hence we cannot say that the administrator is absolutely required to make his report sooner. At the expiration of that time however, an administrator is bound in general to know the condition of an estate, and ought not in ordinary cases to be allowed afterwards to be permitted to say that it was insolvent.

Such a report at a later period is, to say the least of it, á very suspicious circumstance. But it was proper that an objection to such a report should have been made before the probate, court, either by a party interested or by the court itself. The report in this case, although made subsequent to the time allowed by law, was received by the court and commissioners appointed to audit claims. This was equivalent to a judgment or recognition of insolvency, and it may be that the peculiar circumstances of the case justified this course, yet it is improbable that they did.

The evident tendency of the proof before us is to show that the estate was improperly reported insolvent, and still there may have been other facts before the probate court. The account which is made a part of the bill of exceptions is not altogether intelligible. The items may all refer to sums of money due by the intestate. If they do not, explanatory proof would be necessary. The profits of the plantation and the rents may have been properly applied.

Permitting a part of the property to be sold under execution, and the purchase of it by one of the administrators on his individual account was a circumstance which ¿light be proper evidence in showing a devastavit. But we cannot undertake to say that any of the proof offered is of itself sufficient to show fraud in reporting the estate insolvent. It is not contended that it was fraudulently made, and in the absence of fraud we must regard the report and the action of the probate court as conclusive in this collateral inquiry.

The estate now stands as an insolvent estate, and as such the creditors are entitled to a pro rata distribution. If the insolvency has been brought about by mal-administration, the remedy is for a devastavit; and if the report of insolvency has been improperly made, it must be attacked directly. The last error assigned is one that is not now open for discussion. The order granting the supersedeas without security, was not such

an act as can be assigned as error, but if it were so, the question does not here arise. The judgment of the court was given on the motion made in court to stay the execution, and this judgment is the only thing before us. The judgment must be affirmed.