
    William Trezevant et al. vs. Peter McQueen, Administrator of William M. Bostwick, deceased.
    While under the statute of this state, (Hutch. Code, 673,) it is not required of a creditor of an insolvent estate, whose claim is pending in a suit at law, when commissioners of insolvency are appointed, to present his claim until after a judgment at law is Tendered upon it; yet it seems if he omit to do so, and the_ commission is closed, and the commissioners’ report confirmed before his judgment at law, the commission will not be re-opened for his benefit.
    In such case, it is the duty of the administrator, who must be advised of such pending suits, and not of the creditor, to give notice to the commissioners of insolvency of such suits, and insist that a reservation shall be made by them, of enough of the assets to pay the pro rata share of such judgments, should they be obtained.
    And in case he omit to do so, and the commissioners make their report, and it is confirmed, not including such claims whereby they are barred, it will, it seems probable, be such an act of mal-administration on his part, as will make him liable to the creditor thus excluded, for his pro rata share of the assets of the estate.
    
      It is no objection to the allowance and confirmation of the report of commissioners of insolvency, that the order appointing them was made on the 24th of April, 1843, directing them to keep their commission open twelve months ; and their final report was made and allowed, and the commission closed on the 22d of April, 1844.
    In error from the probate court of Marshall county; Hon. Tryon M. Yancey, judge.
    At the April term, 1843, on the 24th of the month, Peter McQueen, administrator of William M. Bostwick, deceased, reported his estate insolvent, and commissioners were appointed to audit claims; and twelve months were allowed to creditors to present them.
    In April, 1844', on the 22d of the month, the commissioners made their report, in which, after enumerating the claims allowed, they say, “Besides the foregoing claims, there has been submitted to us a claim or account against the said decedent, founded on a bill of exchange for $671'62, drawn by William M. Bostwick and John Morgan, on Price, Johnson &■ Co. in favor of Trezevant, Carr & Chester, dated “Lamar, Miss. 1 July, 1841, and drawn at six months; on which' the sum demanded by Trezevant, Carr & Chester is $684-52, with interest from the 4th January, 1842. Said claim is now in suit in the circuit court of Marshall county, and state of Mississippi, and will we presume be determined by the judgment of said court.”
    On the same day the administrator filed exceptions to the report, attacking certain of the claims allowed; and stating that he could not make his proof before the commissioners as to them, because they refused to issue subpoenas.
    1 These claims were referred to referees; the rest of the report confirmed. At the May term, 1844, the referees reported, and their report confirmed.
    On the 18th of August, 1846, Trezevant, Carr & Chester filed an abstract of a judgment in their favor against McQueen, administrator, rendered on the 9th of June, 1846, for $819-19, and cited the administrator to render an account of assets. At the October term, 1846, he did so, and insisted that Trezevant, Carr & Chester were not creditors of the estate, being barred by not being allowed in the commissioners’ report; he insisted also that this judgment had been sold, and bought by Morgan, the co-drawer with Bostwick.
    The cause was continued until November term, 1846, when both parties were heard by counsel. It was admitted that Tre-zevant, Carr & Chester’s claim was in suit when the insolvency of Bostwick’s estate was suggested. The court held the case under advisement until January term, 1847, when it decreed distribution among the other creditors named by the commissioners, and excluded Trezevant, Carr & Chester; whereupon they sued out this writ of error. •
    
      J. W. C. Watson, for plaintiffs in error,
    Insisted, 1. That the claim, being in suit, was not barred under the statute; and 2. That the proceedings of the commissioners were illegal, and their report void, because not kept open twelve months. He cited Hutch. Code, 667,668, sec. 103; lb. 673, art. 2, sec. 1.
    
      Charles Scott, for defendants in error,
    Cited 5 S. & M. 354, 422; 7 lb. 280; 4 lb. 258 ; Hutch. Dig. 668.
   Mr. Justice Thacher

delivered the opinion of the court.

Trezevant, Carr & Chester had a suit at law pending against Bostwick’s estate, at the time it was represented insolvent by the administrator. The commissioners of insolvency, in their report, which was confirmed in 1844, mention that this claim was submitted to them, and was then in suit awaiting a judgment, but they omitted to consider it as a claim, or to make an allowance for it. In 1846, this claim, which had then matured to a judgment against the estate, was filed in the clerk’s office of the probate court. The court decreed the claim to be barred as against the estate, and refused to reopen the commission or report so as to let it in for its pro rata share of the assets of the estate.

By the act of June 30th, 1822, Hutch. Dig. 673, art. 2, sec. 1, it is provided, that “ in case any suit shall be pending against an executor or administrator, at the time he, she, br they shall represent the estate of the testator or intestate insolvent, such suit shall not abate, or be. dismissed, in consequence of such insolvency, but the plaintiff may proceed to trial and judgment; no execution shall issue on such judgment against any such insolvent estate, but shall and may be filed as a claim against the estate of such testator or intestate,” &c.

By virtue of the foregoing statute, it is not required of a creditor of an insolvent decedent’s estate, whose claim is pending in a suit at law when the commission goes out to adjust the claims of creditors, to present the same until after a judgment rendered upon such claim. This is a right given by law to a creditor under such circumstances ; and, because the report of the commissioners is returned and allowed by the court before the claim of such creditor has matured to judgment, the creditor cannot thereby lose'his claim, if he then file it against the estate, in accordance with the statute. On the other hand, it is most prob-ablythe duty of an administrator, when his intestate’s estate has been put in the hands of commissioners of insolvency, and when suits are pending against such estate, to notify those commissioners of the suits so pending, in order that they may make their allowance, and report in view of such probable claims against the estate. The administrator always has notice of claims in this predicament, and it is, as we are inclined to think, his duty to those creditors, by virtue of the statute, and his interest for his own protection, to insist that a reservation shall be made by the commissioners, of so much of'the assets of the insolvent intestate’s estate as may be deemed needful to meet the possible contingency of the claims being matured to judgment against the estate, although, if not so matured, this may create a fund to be afterwards redivided among the creditors.

In this case, the claim was before the commissioners, but they disregarded it in making their allowance and striking the dividends of the creditors. ' At this stage, the administrator should have contended in the probate court for a correction of the commissioners’ report in this particular and to this extent, so as ultimately to have protected these creditors and himself. He failed to do this; and was thereby and to that extent guilty of an act of mal-administration, for which he perhaps may be made liable to those creditors upon a proper showing, in a proper proceeding, for their ratable share. But as to this, we reserve an unqualified opinion.

If was the business of the administrator, and not of the creditor, to have presented this claim to the notice of the commissioners, and to have required its protection in the event of its successful prosecution at law against the estate; and therefore the creditors in this instance have made no neglect in the transaction, but that comes home to the administrator.

It is now too late to reopen the report. The objection taken to it upon another account is we think insufficient, and at least cannot be taken advantage of by these creditors.

The decree of the probate court, refusing to permit the report to be opened so as to let in this claim, must therefore be affirmed.  