
    Clarissa Dickinson, Appellant, &c. versus Pliny Arms.
    An administrator’s first account of his administration may be allowed by the Court of Probate, although not rendered until after the expiration of four years from the time of giving notice of his appointment.
    The same person being administrator on the several estates of A and D, and the estate of D, which was solvent, being indebted to the estate of A upon a promissory note, the administrator, in iiis administration account of the estate of ]>, charged the amount of the note as paid by himself at a date more than four years after he had given notice of his appointment as administrator on that estate, with interest to that date. Held, that the date was not conclusive against lum as to the time of payment, but that the law would presume he paid the note as soon as he had sufficient funds in his hands.
    
      Held also, that he had no right to charge interest on the note after his liability to pay ceased.
    This was an appeal from a decree of the judge of probate of Franklin county, allowing the first account of Pliny Arms, the appellee, as administrator on the estate of David Dickinson.
    The appellee was appointed administrator in 1823. The estate was solvent.
    The first reason of appeal was, because the judge allowed the sum of 321 dollars paid, on a note dated January 16, 1819, to the estate of Jonathan Arms, on October 14, 1828, being more than four years after the appellee had given notice of his appointment as administrator.
    
      The appellee was likewise administrator on the estate of Jonathan Arms.
    The third reason was, because interest was allowed upon the note to October 14, 1828.
    The fourth was, because the allowance of the account generally was erroneous, the appellee having presented and settled no administration account until after the lapse of four years after he gave notice of his appointment.
    
      H. G. Newcomb, for the appellant.
    The intent of the statutes of 1788, c. 66, and 1791, c. 28, is, that estates shall be settled within four years after notice of the appointment of an administrator; and all demands against the intestate which have been payable, are lost, if not enforced within that period. This provision is for the benefit as well of the heirs as of the administrator, and cannot be waived by the administrator. Scott v. Hancock, 13 Mass. R. 162; Brown v. Anderson, ibid. 203; Dawes v. Shed, 15 Mass. R. 6; Ex parte Allen, ibid. 58; Emerson v. Thompson, 16 Mass. R. 429; Royce v. Burrell, 12 Mass. R. 395; Heath v. Wells, 5 Pick. 140. It may be objected, that the money was in the hands of the appellee and paid by him within the four years, he being the administrator upon both estates. The answer is, that by the entry in his account he has fixed the time of the payment; and he has cast the interest to October, 1828, which negatives the idea that the money was before that time assets in his hands as administrator on the estate of Jonathan Arms.
    
      Sept. 22d
    
    At least, the appellee cannot be allowed to charge interest accruing on the note after the four years.
    
      Wells, for the appellee,
    said the question was, whether the St. 1791, c. 28, applies to the case of a private claim of the administrator ; for the appellee is unquestionably answerable to the estate of Jonathan Arms, if he neglected to collect this note. This question is settled by the case of Richmond, Administrator, Sfc. 2 Pick. 567. Though the date of the supposed payment is after the expiration of the four years, yet as there was no actual payment, the Court will allow the date to be altered.
    
      J. H. Ashman, in repl},
    denied that this was a debt due to the appellee personally ; it was an independent claim of one estate against another; the appellee is a mere trustee, and he cannot be personally affected, unless for some neglect.
    
      Sept. 25th.
    
   Parker C. J.

delivered the opinion of the Court. The appellant supposes the decree wrong, in allowing to the administrator the amount of a promissory note, given by the intestate, David Dickinson, to Jonathan Arms in 1819, because it is charged as paid in October, 1828, more than four years after administration was granted on the estate of David Dickinson. And cases are cited to show «that the administrator is not only not compellable, but that he ought not to pay any debts which are not demanded within that period.

We are inclined to think that the doctrine thus set up is correct, but not applicable to this case. Pliny Arms, the defendant, is administrator of both estates. As administrator of Jonathan Arms, he held the note given by Dickinson to Jonathan Arms’s estate and was bound to collect it. The estate of David Dickinson being solvent, the defendant had a right to appropriate so much of the funds as would pay this note, the moment they came into his hands. And the law presumes that it was so appropriated ; for he could not sue himself. He was chargeable, in his administration account of Jonathan Anns’s estate, with the amount of this note ; for he had funds in hand wherewith to pay it. The date of the payment, as stated in his account, is not conclusive against him as to the time of payment; and the relation in which he stood to both estates shows the payment was made before that time, and before the four years expired. He should not however have been allowed interest on the note after his liability to pay ceased.

The general objection to the whole allowance, because the account was not settled in the probate office until after four years from the time of taking out administration, is not sustained, neither the Jaw, nor the practice in probate courts, having established such limitation against the accounts of administrators.  