
    Elkanah L. Bramblet, administrator of James M. Norwood, deceased, vs. George F. Webb et al., creditors of James M. Norwood.
    It is the duty of an administrator to be prompt in reporting his intestate’s estate insolvent, if it be so; and as a general rule it must be done before he pays any debts; he cannot prefer creditors ; for each has a lien in proportion to his claim, and an administrator cannot pay one to the prejudice of others ; yet if an administrator is coerced to make payments before he can know the estate is insolvent, it seems that he should be excused on a showing that he had been compelled to pay.
    As the law now stands, all claims against a deceased person’s estate must be presented within two years from the publication of letters of administration; within that time an administrator should be able to know and to report the condition of liis intestate’s estate, and it is not a sufficient excuse for not so reporting the estate within that period, that suits were pending undetermined against the estate, until after that time.
    
      Where an administrator, four years after the grant of administration, reported the estate insolvent, and in his report stated that he had paid debts to the amount of $5000 ; and had on hand but $500 of assets, and that there were upwards of $4000 of debts unpaid; but made no showing of peculiar circumstances to excuse his delay in reporting the estate insolvent, and did not even state that he was ignorant of its insolvency; and the probate court, at the instance of the unpaid creditors, refused to receive the report; it was held, that the reception of a report of insolvency was in some degree in the discretion of the probate court; and that in this case there had been no error in the exercise of that discretion.
    It seems that if an administrator has improperly paid debts in full, and after-wards reports the estate insolvent, but offer.s to provide for the unpaid creditors, his report of insolvency ought to be received.
    While an administrator is not liable beyond the amount of assets, yet if the estate be insolvent, and he has improperly paid some creditors in full, he must make up the deficiency which this has caused, and ought not to be permitted to make a report which -will cut short the dividends of some of the creditors, whilst others have been fully paid ; yet if such a report be made and allowed, the unpaid creditors have but the residue of the estate to look to; for the rest of their debt their remedy being on the administrator’s bond.
    Appeal from the probate court of Amite county; Hon. John Walker, judge.
    A petition was filed by Elkanah L. Bramblet, administrator of James M. Norwood, in the probate court, to have the estate of Norwood declared insolvent. He represented that he had sold all the real and personal estate, and the amount of good assets received or to be received, as $4090-38, and the debts unpaid, $4493-92; the debts paid, $5213-53; showing a deficit of $5617-07, besides fees, &c. This petition was filed at the August term, 1847. His letters of administration were granted on the 25th September, 1843. The petition stated, as a reason why the report of insolvency was not made at an earlier day, “ that divers suits were pending in the circuit court of Amite county against the petitioner as administrator, all of which were not disposed of until the March term, 1847, of that court.”
    George F. Weld and others, creditors of Norwood, filed to the petition five exceptions, as follows:
    1. That the account of assets by the administrator was false and fraudulent, and concealed $344 60.
    
      2. A failure to return an account of the notes, &c., of Nor-wood & Bramblet, a partnership of which the deceased arid the administrator were the members, the one half of which belonged to the estate.
    3. Failure to return to court the sum of $48, and $1002-72 of firm assets, one half belonging to the estate.
    4. The expenditure of large sums to pay claims not privileged; also large amounts of firm debts; the allowance in his account of $15 paid.
    5. The right to declare the estate insolvent was barred; the term of three years from the grant of letters having elapsed.
    The testimony was agreed on by counsel. It consisted of the annual account rendered by the administrator in the probate court in October, 1844, showing assets $4762-17; payments to debts, $1392-72; payment to debts of Norwood & Bramblet, $2841. He charges himself with $1002-72, received of the firm collections of Norwood & Bramblet. Also the annual account, rendered July, 1847, shows $484-12, received since last settlement, and paid out $2148-59, of which some of the items were the debts of the firm of Norwood & Bramblet.
    It is not necessary, however, to notice more of the testimony. The probate court sustained a part of the fourth and all of the fifth exception, refused to declare the estate insolvent, and dismissed the petition. Bramblet appealed.
    
      D. W. Hurst, for appellant.
    1. The court below erred in entertaining the objections filed by the appellees. In,proceedings like the one now at bar, it is believed that those who wish to contest the right of the administrator, to report the estate of his intestate insolvent, should do so either by bill or petition to the court, alleging the grounds upon which they rely, or by answer, tendering to the administrator such an issue as the court could decide, and not by objections which present nothing upon which the administrator can take issue, or any issue upon which the court can decide. It cannot be said that it is now too late to raise this objection to the proceedings in the court below, for the reason that the objection could have been made there, and, as far as this court knows, was made upon the hearing of the cause in the court below.
    2. The court erred in sustaining the fourth objection in part, without stating what part was sustained. The objection contains three distinct reasons why the report of insolvency, which was attempted to be made by the administrator, should not be allowed by the court. And the court below decreed that part of the objection should be sustained without stating what part.
    3. The court erred in sustaining thé fifth objection. From the provisions of our statute (see H. & H. 409, sec. 80) it is hard to conjecture, even, how the court below could have decreed that the fifth objection should be sustained; for there is nothing in our law that requires a report of insolvency to be made by the administrator within three years from the grant of letters of administration. But the law is, whenever the administrator shall discover that the estate of his intestate is unable to pay off creditors, that fact being made known to the court, commissioners shall be appointed, &c. We assume, then, that there is-nothing in our statutes that limits the time to three years in which the report of insolvency should be made. The court below, in decreeing the dismissal of the petition, may have done so upon the authority of the case in 6 Howard, 560, where the question was raised but not directly decided. And even admitting that the authority referred to is conclusive, yet the averment of the petition shows, that the administrator has brought himself within the very letter and spirit of the exceptions which the court makes, by his reason for not making his report of insolvency sooner, the pendency of divers suits in the circuit court of Amite county, which were not disposed of until the March term, 1847, which was not disproved or disputed by the defendants in error. The inference is, that the suits in the circuit court, which are mentioned in the petition, could not have been commenced later than March, 1S46 ; letters of administration were granted 25th of September, 1843. From this the court will see that up to the time that the suits were commenced, three years had not elapsed from the grant of the letters of administration to plaintiff in error, but before the determination of the suit three years had elapsed.
    
      Montgomery and Boyd, for appellees.
    1. We think the proof sustained all the exceptions taken to the petition but the first. The decision of the court upon the last exception, which covers the whole ground of the case, is sustained by the opinion in Parker v. Whiting's Adm’r.. 6 How. 352.
    The course of the administrator cannot be defended. He took out letters in 1843,-and the proof is, that in 1844 he had paid debts to an amount greater than the whole assets of the estate, as they are shown in .the petition in 1847. This left an amount of debts unpaid, exceeding those paid by several hundred dollars. Near three thousand dollars of the debts paid, were debts due by the partnership of the intestate and his administrator, which existed in the lifetime of Norwood, under the name of Norwood & Bramblet, although no return is made showing the assets of that firm, the one half of which belonged to Norwood’s estate.
    The administrator, thus showing a full knowledge of the situation of the estate, distributes all the assets to one half of the creditors, and proposes to prevent the other half, whose claims are unprovided for, from, obtaining any dividend whatever, by reporting the estate insolvent, and no assets in existence.
    3. The petition shows no excuse for the delay in offering the report of insolvency, but the reverse; because the fact of suits pending and undivided, so far from being an excuse, furnishes the very evidence required by the statute of an apparent insolvency. It is the condition of insolvency that the administrator is bound to report, and that exists whenever the assets exceed the claims, whether their claims be finally sustained or not. 1 S. & M. Ch. 599; 2 S. & M. 287.
    ■ 4. This is not, however, the question in the present case, so much as the other and more important matter, of the continued payment by the administrator of a portion of the debts, and thus exhausting the assets, leaving nothing for one half of the creditors. For this hes offers no excuse. And if the report of insolvency is allowed, commissioners would necessarily report no effects to be divided.
    5. If we cannot prevent this declaration of insolvency, we have no remedy. Should we sue on the bond to subject the sureties, we would be answered by the proceedings of insolvency, by which our claims are, by the statute, limited to the amount of the dividend to be declared.
    6. It may be urged, that the administrator ought not to be held liable beyond the assets received by him. This is true, if he discharges his duty according to law; but if not, he should be subjected to all the consequences of his acts. ' May we not with more propriety say, that the creditors whose claims were prosecuted, and most of them in judgment, ought not to be deprived of their pro rata share of the effects of the decedent, by the unauthorized acts of the administrator.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

The appellant, at the August term, 1847, of the probate court of Amite county, presented his petition as administrator of the estate of James M. Norwood,, deceased, in which he represented the estate insolvent, and prayed that it might be so declared, and commissioners of insolvency appointed. The creditors resisted the application, and the court sustained their objections, and dismissed the petition.

Administration was granted in September, 1843, nearly four years before this petition was presented. In the petition, the administrator represents the proceeds of the sale of real and personal estate and other assets, to be $4090-38. That out of the assets and cash, the amount remaining in his hands was $547-12; that he. had paid debts to the amount of $5213-53; that there still remained unpaid, debts to the amount of $4493-92; making an aggregate of debts to the amount of $9707-45, and a deficit of real and personal estate of $5617-07. The only reason given in the petition for not having represented the estate insolvent is, that ther.e were suits pending against it. The administrator does not even say that be did not know it to be insolvent. For any thing that appears, the suits may have been instituted against him to coerce payment of established debts.

The law on this subject is very plain. First, the administrator must be prompt in making his report of insolvency. H. & H. Dig. 407, sec. 76. Second, such report must be made before he pays any debts. Ib. 409, sec. 80. When the estate, real and personal, is insufficient to pay all the debts, it shall be distributed among all the creditors in proportion to .the sums to them respectively due. An administrator cannot prefer creditors; the law gives each a lien in proportion to his-claim, and an administrator cannot pay out to the prejudice of others.

The petitioner, from his own showing, has violated the law. He must have known the condition of the estate at a much earlier period, and yet he was four years in bringing forward his report. In the case of Parker v. Whiting’s Adm’r., it was held, that an administrator was bound, except under peculiar circumstances, to bring in his report of insolvency at the expiration of three years at most, that being the time allowed for the presentation of foreign claims; at that time he must know the condition of the estate, and the statute requires that the report of insolvency shall be made as soon as may be.” This must be done, too, before the payment of any debts. A very rigid construction of the law in this particular might, lead to difficulties, as an administrator may be coerced to make payments before he can know that the estate is insolvent. In such cases it would seem that he should be excused'on a showing that he had been compelled to pay. As the law now stands, all claims must be presented within two years; within that time, then, the administrator should be able to know the condition of the estate. Not only is this application made four years after administration, but the administrator states that he -has paid off debts to the amount of several thousand dollars, which had exhausted all the estate except about five hundred dollars, which he wished to have distributed amongst creditors claiming as many thousands. These creditors had equal rights with those who had previously received their whole' claims. The administrator is not liable beyond' the amount of assets; but to that amount he is liable, and if the estate be insolvent, the creditors are entitled to an equal distribution of the whole estate. If he has paid more to some than they were entitled to, he must make up the deficiency which this has caused, and ought not to be permitted to make a report which will cut short the dividends of some of the creditors, whilst others have been fully paid. If he will provide for the unpaid creditors, then perhaps there could be no objection to his reporting the estate insolvent. But such a report is conclusive. The administrator must exhibit a true account of the debts to be paid, with the amount of the estate. In this instance, if the report of insolvency had been allowed, the unpaid creditors had but the residue of the estate to look to. For the balance,. their remedy was on his bon'd. The probate court is to direct the distribution of an insolvent estate, and the administrator should produce the fund to be distributed. The great objection to an allowance of the petition is, that it would seem to sanction maladministration. The court must be satisfied that an estate is insolvent before it so declares it. It must of course, then, have some discretion in the matter. The administrator has shown no peculiar circumstances which would excuse his great delay, nor does he even say that he was ignorant of the insolvency of the estate. We see nothing in the case which would justify us in saying that the probate court erred. ■ The law does not leave the administrator to be guided and controlled by his own discretion, and if in that way he is involved in difficulties, the fault is his own.

Judgment affirmed.  