
    * Polly Bucknam, Administratrix of the Goods and Estate of Russell Bucknam, deceased, Appellant from a Decree of the Probate Court, versus Stephen Phelps, a Creditor of said Estate.
    Where a judge of probate had rejected a representation of insolvency, made by an administrator, and upon a second application, which the administrator offered to support by legal evidence, again refused to receive it, giving his former decision as a reason for-the second denial, he was commanded to receive the evidence, and to decree thereon, according to law.
    The appellant, at a Probate Court holden in February, 1809, represented to the judge, that the estate of her intestate was insolvent, and prayed for the appointment of commissioners to receive and examine the claims of the creditors. On a hearing of the parties, the judge rejected the representation of the administratrix, and refused to appoint commissioners. —Afterwards, at a Probate Court holden in July of the same year, she again represented to the judge, that the estate was insolvent, and insufficient to pay all the just debts of the deceased, and renewed her request for the appointment of commissioners; declaring that she was ready to prove the truth of her representation by legal evidence. The judge refused to receive this evidence, decreed that her representation should be rejected, and denied her request for the appointment of commis sioners, because he had before decreed that her first representation should not be allowed, nor her prayer for the appointment of commissioners be granted. From this decree of the judge she appealed to this Court, and filed her reasons of appeal, one of which is the refusal of the judge to receive evidence of the insolvency of the estate of her intestate.
   Curia.

We are of opinion that the judge erred in refusing to hear the evidence offered by the administratrix in this case. At the» time of the first decree, the evidence to prove the insufficiency of the estate to pay all the debts, might not establish or render that fact probable. But since that time, evidence of new facts tending to prove that insufficiency may be in the possession of the appellant. New debts may have been since exhibited to her; or credits or effects supposed to belong to the estate may have been found to be of little or no value. — The judge, therefore, * ought to have received any new evidence to prove the [ * 449 ] insolvency, and to have decided according to the weight of it, and not to have considered his former decree as conclusive

Mellen and Hopkins for the appellant.

Whitman and Greenleaf for the appellee.

This decree must be reversed, and the cause remitted to the judge, with directions to receive any further evidence the appellant may produce, and thereupon to decree according to the law and justice of the case.  