
    POLK vs. FARAR et al.
    1. If an administrator’s account,, on a settlement before the county court, shows that he has no cash, but only property in his hands, and the court makes an order that all demands of a particular class be paid, it is upon the implied condition that funds sufficient for that purpose first come into his hands ; and a creditor of that class, who sues out a seir&fa* das to compel payment of his demand, must show that the property has been converted into cash.
    APPEAL FROM FRANKLIN CIRCUIT COURT,
    STATEMENT OF THE CASE,.
    This was an action commenced in the county court of Franklin county, by William Polk against Elizabeth Farar and her securities, as administratrix of the estate of John S. Farar, deceased, under the provision of the administration law permitting the issuing a scire facias in certain cases.
    Dr. Polk had presented to the county court for allowance against John S. Farar’s estate, two demands for medical services, and they were allowed at the May term, 1846. One was for fifty-eight dollars, and was classed in the second class. The other was for about sixty dollars, and was put in the fifth class.
    At the next February term of the county court, the administratrix was ordered by the court to pay all demands allowed against the estate up to the fourth class. This included one of the allowances in favor of Dr. Polk.
    Demand was made of the administratrix for the payment of this demand in the second class the paymentjrefused.—An execution was issued against the administratrix—a return of no properly found made by the sheriff, and thereupon a scire facias issued against the securities, which was served, and upon the trial the court gave the following judgment :
    “ It is ordered by the court that the said plaintiff' take nothing by his said suit, and that the proceedings in said case be rescinded and dismissed, and that the said defendant recover &c.”
    The defendants appealed from this judgmeut to the circuit court.
    On the trial in the circuit court the cause was submitted to the court, and the court found foi the defendants. An appeal was taken to this court upon a motion for a new trial having been overruled.
    1st. The evidence for the plaintiff was as follows : first the bond of E. Farar as administratrix with L. W. Draw and others as her securities.
    2d. The record of the allowance of the demand in favor of Dr. Polk against John S, Farar’s estate in the 2d class.
    8d. The record of the order of the county court ordering the administratrix to pay all demands up to the fourth class.
    4th. '1 he demand of payment made by Dr Polk before the issuing the execution.
    5lb. The execution and the return of the sheriff thereon—no property found &c.
    6th. The first and second annual settlement of the administratrix } the first made at the May term, 1846, in which she is charged with the sum of $2,149 26, and the second made in August, 1847, in which she is charged wilh $2,257 77, the balance in her hands at this settlement.
    7th, The inventory of tile estate, by which it appeared that the cash on, hand, and evidences of debts due the deceased, amounting to $2,142 27, and the sale bill amounting to $267-95.
    It was also proved that Elizabeth Farar had received cash on a mortgage to the amount of $226 prior to the demand being made.
    This was the substance of the evidence given by the plaintiff though not in the order that it appears upon this record.
    The defendant proved by J. Farar (who was objected to on account of interest, he being a distributee, but the objection was overruled by the court) that he was agent for the administratrix. That he had no notice of the intended application of Polk to the county court for an order for the payment of the debt in the second class, until he was shown the execution upon it by the sheriff,- that no defats in the second class had been allowed but this and funeral expenses paid. That he had previously paid debts to the amount of some $500 in notes belonging to the estate, but it did not appear that any money had been paid by him or the administratrix. He also stated that the administratrix had no appreciable amount of money at the time of said order.
    Upon this evidence the court gave judgment for defendants.
    Frissell, for appellant.
    The plaintiff relies upon the following points:
    1st. Thai the county court had no authority to set aside the order for the administratrix to pay the- demand allow ed against the estate up to the 4th class at a term subsequent to the making the order.
    2d. That the administratrix was bound to pay the demands against the estate according to the class, paying the whole of a prior class before she paid any part of a subsequent class.
    3d. That the evidence showed cash funds in her hands belonging to the estate more than sufficient to have paid this demand allowing she had collected no part of the proceed of the sale. Stat. of Mo., 1845, page 98, sec. 11, 12, 13,14,16.
   Napton, judge,

delivered the opinion of the court.

In this case the county court of Franklin county had made an order upon the defendant, who was administrator of the estate of Farar, deceased, to pay all debts allowed up to the fourth class. Among these, and in the second class, was the claim of Dr. Polk for medical services. Upon this claim a demand was made, and an execution issued, which being returned nulla bona, a scire facias was sued out against the securities. Upon the trial it appeared, from the testimony of a son of the defendant, that she had received no money, and that the settlements made by her, and which represented her to have received several thousand dollars, were only based upon the inventory and sale bill. The court therefore rescinded the order to pay the plaintiff’s demand, and gave a judgment for the defendant. The same result took place upon a. trial in the circuit court.

When administrators make a settlement, they charge themselves with the amount of the sal© bill, and with evidences of debt, and other things-not available, as cash. The court seeing from the exhibit of the condition of the estate, and seeing that it will be ample to satisfy all demands of a particular class, make an order that they be paid. This must be-under the implied condition that funds sufficient for that purpose must first come to the hands of the administrator. The administrators account shows that he lias only property and effects in his bands, and he-who sues out a scire facias, must show the fact that the property has been converted into cash. The settlement in this case does not show that sufficient money was in the hands of the administrator at the time-of making the general order for- the payment of the demands of the-second class.

The other judges concurring,, judgment affirmed.  