#### Ex parte William Nayler and Thomas P. Smith.

*Creditor’s Bill*— Marshalling *Assets*— Practice.

A creditor, who has failed to present his demand within the time limited by an order, under a creditor’s bill, calling in creditors to present their demands, may, upon contributing his fair proportion of the expenses of the bill, be permitted to present and prove his claim at any time before actual distribution of the assets.

But such creditor will not, it seems, be saved from the eifect of his neglect, if any defence, arising from the lapse of time prior to the filing of his petition for leave to present and prove his demand, can be made.

BEFORE DUNICIN, CH., AT BEAUFORT, MARCH, 1859.

Dunkin, Ch. Mr. Dayant reports that on 23d of November, 1855, proceedings were instituted in this Court, under the title of McBride vs. Kirk, for the purpose of marshalling the assets and administering the estate of Rollin H. Kirk, deceased. On 8th December, 1855, the commissioner was ordered to call in the creditors, by public notice, in the usual way. This was accordingly done, and at February sittings, 1856, claims were established to a large amount — further time was given; and at February sittings, 1857, a small additional amount was established, making an aggregate of about $47,500.

The real estate had been sold by the commissioner, and in January, 1858, he notified the administratrix that a deficiency existed to pay the debts thus established, and which had been ordered to be paid, of about $3,000; and on 3d May, 1858, a friend of the family paid into his hands the sum of $3,140, which made up the deficiency.

On 26th April, 1858, a petition had been filed on behalf of the minor children of Rollin H. Kirk, in the name of Lewis *260W. Garth, their guardian, stating that he was the brother of their mother, (who was also administratrix of her deceased husband, Rollin H. Kirk,) that she, with her children, were about to remove to Kentucky, where the petitioner resided— that the estate of the intestate consisted of about twenty negroes, to two-thirds of which his wards were entitled — that the debts of the intestate were paid or provided for, and praying leave to remove their property. On 11th May, .1858, the commissioner reported that the facts were as stated, and thereupon, Chancellor Ward law made an order that the petitioner have leave to remove the property of his wards to the State of Kentucky. Both Mrs. Kirk and her children removed to Kentucky with the negroes, where they have since continued to reside.

About 14th February, 1859, this petition was filed. The petitioners had a claim of *$532 41*against the *estate of*Rollin H. Kirk, deceased, which was presented and established prior to the report of February, 1856, and is therein provided for and ordered to be paid. They pray now to be allowed to establish other claims. No evidence was offered — the petitioners’ counsel declined to offer evidence — that these claims had ever been presented either to the commissioner, or to the administratrix, or to the solicitor of the estate, nor was any evidence offered of the reasons for the omission.

The commissioner reports that he has no funds, except Those already ordered to be paid to creditors, whose claims have been long since established. It is clear that these creditors never would have allowed the order of 11th May, 1858, for the removal of the property to be made, if the funds to satisfy their demands had not been paid to the commissioner. The order of 11th May, 1858, implied a final distribution of ■the funds among the distributees. If the petitioners have any claim against the estate of Rollin H. Kirk, deceased, their laches has precluded them from any aid on the part of this 'Court.

It is ordered and decreed, that the petition be dismissed.

*261The petitioners appealed upon the grounds:

1. Because the right of the petitioners to prove their claim under the order made in the case of *McBride vs. Kirk,*calling upon creditors to present their demands, is in no manner dependent upon “ whether the claim was ever presented to the commissioner, or the administratrix, or the solicitor of the estate,” but upon the question whether there is a residuary-fund in the Court, or in the hands of the administratrix, at the time of the application.

2. Because, if the demands of the petitioners ought to have been first rendered to the solicitor of the estate, or the administratrix, before they could claim the right to prove them before the commissioner, the petition, which is sworn to, distinctly stated, and the fact has never been denied or contradicted, that the said demands were not only rendered to the solicitor, but also to the commissioner; and the reference made at the hearing of the petition, in this case, ought to have been, not merely that the commissioner should report what funds were in his hands, and whether any final decree had been made, but whether the petitioners did render their demands as stated in the petition.

3. Because the petition is always for leave to come in and prove *“ nunc pro*tunc,” which pre-supposes the neglect or omission of the creditor to present or give notice of his demand before the expiration of the time limited by the order.

4. Because his Honor erred in supposing there was any final decree or order for the distribution of the residuary fund in the hands of the administratrix; the order made in *“ ex parte*Garth” was outside of the case made at chambers, and without the knowledge of the creditors, besides which, it appears by the said order itself, that one-third part of twenty negroes still remained in the hands of the adminis-tratrix.

5. Because it appears by the commissioner’s report, which was before his Honor, that in 1858, there were twenty-five negroes, part of the assets of the estate of Rollin H. Kirk, *262in the possession of the administratrix, subject to the disposition and order of the Court, and it is submitted, that it' was not in the power of the said administratrix, by consenting to an order taken at chambers without the knowledge of the parties to the bill, to withdraw any part of the said negroes from the control of the said Court.

6. Because the said Mrs. Kirk is now in possession of the said negroes, as administratrix, and not' as distributee, and all of the negroes, as well those in her possession, as those in the possession of her children, are liable, at least, for the debts which have been proved, should the funds in the hands of the commissioner, from any cause, prove insufficient.

*Be Treville, Pope,*for appellants.

*Fielding,*contra.

The opinion of the Court was delivered by

Wardlaw, J.

In bills to marshal and administer the assets of embarrassed estates in the Court of Equity, commonly called creditors’ bills, the practice is well settled to allow a creditor wh) has failed to present and prove his claim before the day appointed in the order calling in creditors, still to come in with his claim, at any time before the actual distribution of the assets, upon his contributing his fair proportion of the expenses of suit. This practice needs no vindication beyond that contained in the cases of *Shubrick vs. Shubrick,*1 McC. Ch., 406, and *ex parte Hanks,*Dud. Eq., 233. The petitioners who seek to intervene as creditors in the case of *McBride vs. Kirk,*make a case within this procedure. No final order for the distribution of the funds, much less no full distribution, has been made. Some of the assets are yet in the registry of the Court; and the adminis-tratrix has in her hands twenty or more slaves of the intestate estate, undertaken to be administered by the Court. The *263
      *ex parte*order of May II, 1858, that their guardian might remove the property of the infant distributees beyond the limits of the State, implies no actual distribution, cannot commit creditors, and cannot protect the administratrix. The petitioners offer to pay a fair share of the expenses.

This petition seems to have been filed about February 14, 1859. It prays that the petitioners may be allowed to prove their “ claims *nunc pro*tunc, subject only to such legal and equitable grounds of objection as were valid against said claims on February *25,*1856,” when the first report on debts was made by the commissioner. We think the petitioners are entitled to come in and prove their demands *nunc pro tunc,*in the sense that they shall not be barred by their mere failure to present their demands before the expiration of the time limited by the order. But we can afford no patronage or protection to laches. The Chancellor says in his decree, “the petitioners’ counsel declined to offer evidence that these claims had ever been presented to the commissioner, or to the administratrix, or to the solicitor of the estate, nor was any evidence offered of the reasons for the omission.”

The petitioners are not entitled to be saved from the consequences of the lapse of time before the filing of their petition.

It is ordered and decreed, that the petitioners have leave to prove their demands, as if presented February 14, 1859; and that the circuit decree be reformed accordingly.

O’Neald, C. J., and Johnston, J., concurred.

*Decree reformed.*