
    Jonathan Davis versus David Estey et al., Administrators.
    Where an original administration is granted in another of the United States, ana an ancillary administration, in this State, and the estate is insolvent, a creditor in this State is entitled to a pro ratá dividend only, althoiv > vite assets in this State are sufficient to pay his demand in full.
    Where an original administration was granted in another State, and a commission of insolvency was issued, of which no notice was given to a creditor in this State until after the commission was closed, and ancillary administration was granted here, but no commission of insolvency was issued, and the creditor brought an action against the ancillary administrator, it was ordered that he should recover a judgment for his whole debt, upon which he would be entitled to a pro ratd dividend, but that no execution should issue.
    Upon a case stated it appeared, that this action was brought to recover the amount due on a promissory note, made by David Hicks, the defendants’ intestate. Hicks, at the time of his death, resided in Vermont, where administration was granted to the defendants. They represented the estate to be insolvent, on January 4, 1827 ; and commissioners were appointed, agreeably to the laws of Vermont, for the purpose of adjusting the claims of the creditors. The commissioners gave due notice, received the claims of creditors, and made a return of their commission, with a list of the claims allowed by them. The amount of the claims allowed by the judge of probate in Vermont exceeded the value of the real and personal estate of the intestate. No notice of the issuing of the commission was given to the plaintiff, either personally or by advertising in this Commonwealth, till after the commission was closed ; and his claim was not presented to the commissioners or allowed by the judge of probate. The intestate was the owner of real estate in this Commonwealth. The administrators took out letters of administration here, and obtained license to sell the real estate for the payment of the debts. No commission of insolvency was issued here and the property here was sufficient to pay the demand of the plaintiff in full. Notice of the plaintiff’s claims was given to the administrators, before the assets in this Commonwealth were withdrawn therefrom.
    
      Oct. 3d
    
    
      J. Davis and Allen, for the defendants,
    cited Dawes v. Head, 3 Pick. 128.
    
      Barton, for the plaintiff,
    said, that the plaintiff claimed only a pro rata dividend, out of the property of the intestate.
    
      Oct 6th.
    
   Per Curiam.

The property received in Vermont by the administrators is to be accounted for there ; but the property in this Commonwealth is liable, to a certain extent, to the debts here. As the estate is insolvent, a creditor here is not to be paid his whole debt to the prejudice of creditors in Vermont, but only a pro rata dividend. There is no difficulty in this case as to the modus operandi. Judgment is to be taken for the whole debt, but no execution is to issue. The administra tors will ascertain the amount of the assets and debts in both States, and pay the creditors here, pro rata. They will be protected in Vermont for what they are compelled to do here by our law. 
      
       Provision is made for such a case by the Revised Stat. c. 70, § 23 et seq. See Porter v. Heydock, 6 Vermont R. 374; Harvey v. Richards, 1 Mason, 381; Jennison v. Hapgood, 10 Pick. 77; Miller's Estate, 3 Rawle, 312; Hooker v. Olmstead, 6 Pick. 481; Olivier v. Townes, 14 Martin, 93, 99; De Sobry v. De Laistre, 5 Harr. & Johns. 193, 224; Story’s Comm, on Confl, Laws 423; 2 Kent. (3d ed.) 433, 434; Dawes v. Head, 3 Pick. (2d ed.) 144, note.
     