The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1909-12-10

for qudshing the execution, and for
the additional reason that by getting
its claim allowed the insurance COM
pany was estopped from taking out
execution and leyylng upon the prop
erty.
On the filing of the bin a temporary
injunction was issued which on the de-
PENDANTS motion was dissolved by de-
cree of the court, the plainun appeal
! ing.
The defendants contend mat the
plaintiffs remedy was at law by bring
ing exceptions to the order granting
the writ of scire facias and denying
the motion to quash, which exceptions
would have afforded her a full oppor-
tunity to review those ruling and that
therefore equity will not grant the re-
lief, citing Atcherley " Jarrett, ~
Haw 511.
The plaintiff seeks to distinguish
that case by the fact of the insolvency
of the estate, which could not have
been known when the petition for
scire facias was brought, as the six
months for filing the claims had not
then elapsed But the insolvency must
have been known to the plaintiff Au-
gust %, 1909, when the motion to
quash was made, and if then available
as a defense equity will not relieve
! the plaintiff from the consequences Of
+ her failure to make the defense unless
there is something in the nature Of
the case which makes the rule in At
cherley V, Jarrett and cases there
cited, inapplicable.
Does the fact that there are Gains
of creditors not parties to the scire
facias proceedings take the case out
of the rule in the Atcherley case? The
other creditors are undoubtedly entitled
to have the decedent's property ap-
piled in payment of their claims pro
rata and their right is enforceable in
no other way than by a sale of the
real estate by the eXecutrix. The
land of a decedent does not require
to be inventoried as assets but it is
equitable assets during the process of
administration of the etate
1t does not appear that the admins
traitor Of an insolvent estate can
place the estate in bankruptcy in order
to prevent execution sales and a pro-
rata distribution among all the credi-
tors by a creditor whose claim has
been presented and allowed. If as
remarked in Estate of Lopez, ante p.
There is no right of action against
the administrator to recover a claim
which he has allowed it follows that
judgment creditor whose claim has
been allowed has no right to an eXecu-
ton against the estate. The remark
in the Lopez Estate case, although per-
haps not required for the decision,
correctely states the law, it's reason
being that after a claim is allowed by
the administrator but not paid, al
though he may be liable personally for
devastavit or on his bond if he has
wasted or misapplied the assets or fail.
ed to apportion them, as he ought tC
do among the creditors pro rata, he
is not liable to an action for it's non.
payment. 1t is only upon the admin
istrators rejection of the claim that
an action for it's non-payment lies
against him and that must be brought
within two months after notice of its
rejection or after the claim becomes
due. Any other course than this
would place he estate at he mercy
of judgment creditors having no liens
by reason of their judgments and pre-
vent it's pro rarta distribution. Nathan
V. Vida, l Haw. 143.
The defendants contentlo that il
was the duty of the eXecutrix if she
wished to obtain exemption of the
estate from suits to represent it's in.
solvent condition appears to be based
on statutes exiting elsewhere but not
here.
. A judgment creditor cannot rely both
upon his judgment and upon his al
lowed claim. By presenting his claim
to the eXecutrix and obtaining it's al.