#### Nathaniel Paine, Esq., Judge of Probate, *versus*Levi Nichols, Administrator.

Where the estate of a person deceased is represented to be insolvent, and commissioners are appointed, &c., no action at common law can be maintained against the administrator, unless the claim has been filed before the commissioners, &.C., although the estate should finally prove to be solvent

Debt on a bond, conditioned for the faithful administration of the estate of *Israel Turner,*who had executed a former bond to the plaintiff, in his said capacity, as surety for an executor who had proved the will of his testator and received testamentary letters from the plaintiff. The said executor being dead, a legatee named in said will had demanded his legacy of the defendant, as administrator of *Turner,*and failing of obtaining payment, the present action was brought upon the bond given, as aforesaid, by the said executor as principal, and by *Timer*as his surety.

The defendant pleads, in bar, that the estate of *Turner*was insolvent; that he so represented it to the judge of probate, who thereupon appointed commissioners to receive and examine the claims of the creditors, &.c.; that, at one of the meetings of the commissioners, the claim for the legacy and damages, to recover which this action was instituted, was duly presented to the said commissioners for examination and allowance; that they examined and rejected the said claim, and, at the end of the term limited in their commission, reported a list of all the claims that had been laid before them, and of the sums allowed by them on each ; and that no notice was given in writing at the probate office, within twenty days after the said report was made as aforesaid, by the creditoi whose claim was rejected as aforesaid, that an action would be instituted at common law for the recovery thereof.

*244To this plea in bar the plaintiff' replies, confessing the representation of insolvency, the appointment of * commissioners, and their report of a list of claims allowed by them, amounting in the whole to the sum of 2439 dollars 97 cents: and averring that the estate of which *Turner*died seised and possessed, and which came to the defendant’s hands as administrator, was of the value of 3969 dollars 86 cents; being more than sufficient to pay all the debts due from said estate, the necessary funeral expenses, and the costs and charges of administration ; traverses the insolvency of the estate, as alleged by the defendant, and tenders an issue to the country.

To this replication the defendant demurs, and the plaintiff joins in demurrer. Sundry causes of demurrer were specially assigned, and some argument applied to them; but as the Court did not con sider them in rendering judgment, they are omitted.

*Willard*and *Shepley,*for the defendant,

relied on the express provision of the statute of 1784, c. 2, which requires a creditor, whose claim is wholly or in part rejected, to give notice at the prooate office within twenty days after the report of the commissioners is made, if he intends to have his claim determined at the common law, and to bring his action as soon as may be; and enacts that, if “ any creditor shall not make out his claim with the commissioners within the time of their commission, or at the common law, oi before referees, in the manner this act provides, he shall be forever barred of. his debt; unless such creditor shall find some other estate of the deceased, not inventoried or accounted for by the executor or administrator before distribution.” The provision is an absolute and perpetual bar, whether the estate be actually insolvent or not. When an estate is represented insolvent, the creditors have no other remedy for their claims but by pursuing the directions of the statute. If they do this, and the estate finally proves sufficient to pay all the legal demands upon it, each will receive the whole amount of his claim ; and if it prove insufficient, each will receive his ratable proportion.

* *Lincoln*and *Newton,*for the plaintiff.

The statute relates to, and is wholly predicated, in all its provisions, upon an actual insolvency. So, also, the statute of 1786, c. 55, for regulating the proceedings on probate bonds, &c., provides, in the second section, that when a suit is instituted at the desire of a creditor of the deceased, as is the present action, certain prerequisites are made necessary, *unless the estate be*insolvent; by which is clearly intended an actual, absolute insolvency. If a creditor cannot avail himself of this remedy, in case of an apparent or rather pretended insolvency, he is without remedy, and the representatives of *245the deceased debtor will pocket his estate, and bid defiance to his meritorious creditors. (1) If the plea in bar is well pleaded, the replication avoids it. The defendant relies on the insolvency of his intestate; the plaintiff denies the insolvency, and avers the solvency of the estate. The return of the commissioners is not evidence of an actual insolvency, but the decree of distribution; and this is not alleged in the plea. (2)

The cause was continued for advisement; and, at the following April term here, the opinion of the Court was delivered by

(1)

1 *Mass. Rep.*234, *Foster*vs. *Abbott, Adm.*— 4 *Mass. Rep.*220, *Hunt*vs. *Whitney, Adm.*—12 *Mass. Rep.*570, *Coleman*vs. *Hall, Adm.*

(2)

 4 *Mass. Rep*ubi supra.

Parker, C. J.

We have come to the conclusion, in this case, that the plea in bar is good, and that the replication is not a sufficient answer to it.

The point brought in issue by the pleadings is whether, when an estate has been represented insolvent, commissioners appointed to liquidate the claims of creditors, and other proceedings arc had which are usual in such cases, any creditor may sue the administrator as at common law, provided the estate proves solvent as to all the debts reported by the commissioners. And we are clearly of opinion that he cannot, and that the only remedy which creditors have, when there is an apparent insolvency of the estate, is to file their claim before the commissioners, and, if rejected, to give the notice and bring the action at common law, as is provided by the statute.

* The words of the statute are peremptory, and will not admit of explanation or construction. “ No action brought against any executor or administrator, after the estate shall be represented insolvent, shall be sustained, except,” &c. And the reason is apparent; for, otherwise, the settlement of estates would be greatly delayed, the funds would be diminished by costs of court, and other inconveniences would take place, which the statute was intended to avoid.

It is enough that the right to trial by jury is preserved, in case the decision of the commissioners is unsatisfactory. But the legislature had a right to require that the creditor should first submit his claim to the examination of commissioners, who have the right to balance the accounts and to make the proper set-offs, and to report only the sum which may be finally due, instead of leaving it to the creditor’s will and pleasure to bring his action when he pleases, and to embarrass the estate by suits at law, which, in most instances, when the demand is against the estate of a person deceased, are quite unnecessary.

*246It was said, however, that the legislature, in enacting the statute, contemplated only an actual insolvency ; whereas, by the pleadings in this case, it appears that the estate of the deceased, which had come to the hands of the administrator, exceeded the amount of the claims reported by the commissioners by more than 1500 dollars.

But it is clear that it was not intended to limit the provision to cases of actual insolvency only. How shall it be known whether an estate is solvent or insolvent, if the creditors, instead of being obliged to present their claims within the time prescribed by law, may institute suits at pleasure, and prosecute them as leisurely as they please ? The very debt which has been withheld from the commissioners might, if presented, have made the estate insolvent; and if one creditor has a right to sue, so have all. Judgments at common law may be rendered, and executions awarded, and the property of the deceased taken, when those very judgments may exceed the value of all the funds in the * hands of the administrator. We are persuaded that the legislature intended, and for the best of reasons, that whenever the estate of a person deceased was represented insolvent, there should be no action brought against it; except in the case provided for, of a dissatisfaction with the determination of the commissioners, without regard to the eventual situation of the estate.

In some cases, where notice may not have reached the creditor, or where he has been unable to present his claim seasonably, this would operate hardly, if the judge of probate had not power to enlarge the time. But this discretionary power in the judge removes all difficulty.

In the present case there can be no pretence of hardship, for the claim was filed with the commissioners, and rejected by them. It must have been owing, therefore, to gross carelessness, or a voluntary abandonment of the claim to recover which the present action was brought, that notice was not given in the manner prescribed by the statute, (a)

*Replication adjudged bad.*

(a)

*Johnson*vs. *Ames,*6 *Pick.*333.