
    STEELE vs. WEAVER'S Executors.
    1. A report of the insolvency of an estate which is in the name of both the executors is sufficient, although it is signed by one of them only, and verified by his oath alone; the report having been adopted by the other executor, and having been treated as a sufficient report by the court, in ordering a sale of the decedent’s lands.
    2. When an estate was reported insolvent previous to the act of 1843, but no progress was made in the settlement until afterwards, the subsequent proceedings must be regulated by that act.
    3. But the creditors in such ease would only be bound to file their claims against the estate within the time prescribed by the court under the previous law, and the right to file claims would also be limited to the time so prescribed.
    4. The law previous to the act of 1843 made no provision for contesting claims between the creditors; when, therefore, the settlement of an estate, which was reported insolvent previous to the passage of that act, is to be made through an administrator do bonis non under the act, the common law rule would prevail, that written objections to claims should be filed within a reasonable time after the appointment of an administrator de bonis non.
    
    Error to tbe Court of Probate of Madison.
    Fleming Jordan, executor, and Martha H. Weaver, executrix of George I. Weaver, deceased, filed their report of the insolvency of their testator’s estate, in the office of the Clerk of the County Court of Madison, on the 1st November, 1841. The report is signed by Jordan only, and verified by his affidavit. It was not recorded at the time, but was only filed among the papers of the cause; nor was any written memorandum made on it to show when it was filed, or that it had been filed at all.
    On the 9th November, 1841, on the petition of the executor, Jordan, the Orphans’ Court made an order for the sale of the testator’s lands, to pay the debts of the estate, and appointed commissioners to make the sale. There does not appear to have been any proceeding had under this order. The next entry in the record sets forth the execution of a new bond by Jordan and Bone and wife, (Mrs. Weaver, the executrix, having intermarried with Bone,) on the 1st January, 1844, agreeably to notice given the 5th December, 1843.
    On the 27th February, 1845, the court made an order requiring the creditors of Weaver to file their claims against his estate, as against an insolvent estate, on or before the 1st September next thereafter; and a number of claims were filed against the estate within the time prescribed. The claims of the plaintiff in error were filed on the 15th June, 1850, which, it is stated, did not accrue until the 12th and 18th February, 1850.
    Upon this state of facts, Steele objected to proceeding with the settlement as that of an insolvent estate, but his objection was overruled. He then moved the court to permit the creditors to elect an administrator de bonis non, which motion also the court refused. The plaintiff in error excepted to these refusals of the court, and now assigns them for error.
    D. C. Humphreys and ¥i. Cooper, for plaintiff in error:
    1. The report of insolvency, signed and sworn to by Jordan only, was insufficient. It should have been signed and sworn to by both, Lambeth & Wife v- Garber et al. 6 Ala. 870; Oaruthers & Kinkle v. Mardis’s Adm’rs, 8 ib. 599. No action of the court was ever had upon the report. It was not recorded, nor was any memorandum made to show that it was filed at all.
    2. But if the report is held to be sufficient, then the estate should have been settled under the act of 1843. It comes precisely within the rule laid down by several decisions of this court, Boggs’s Adm’r. v. Branch Bank at Mobile, 12 Ala. 494; 10 ib. 915; 8 ib. 457 ; 7 ib. 923. See also McBroom v. McBroom, at January Term, 1851.
    James RobiesoN and R. C. Brickell, contra:
    
    1. The estate was reported insolvent under the act of 1806, Aikin’s Digest, 151, § 2. The proceedings conform precisely to the provisions of that statute. The executor exhibits to the court an account of the estate, real and personal, and of the debts owing by the testator. Upon this report, the court acts as required by the statute, and orders a sale of the real estate. No order or decree of the court declaring the estate insolvent was required. If, from the account exhibited by the executor or administrator, it appeared to the court that the estate was insolvent, the court was required to order a sale of the real éstate, and then to notify the creditors of the time and place appointed for receiving and auditing tbeir claims, Aikin’s Digest, 151, § 2 ; ib. 154, § 7. Tbe court bad jurisdiction over tbe estate as insolvent, whenever tbe executor so reported it, and tbe court was satisfied of tbe truth of tbe report, Clarke v. West, 5 Ala. 117. That tbe court was satisfied of tbe truth of tbe report appears from its action, in ordering a sale of tbe real estate, as required by tbe statute. Tbe report appearing of record, and tbe Orphans’ Court having treated tbe estate as insolvent, tbe Court of Probate properly overruled tbe plaintiff’s first objection.
    2. Tbe plaintiff’s motion to elect an administrator de bonis non was also properly refused. No notice was given to tbe creditors to attend for any such purpose, as seems to be contemplated by tbe statute of 1843, Clay’s Digest, 195, §§ 5, 6.
   PHELAN, J.

This estate was reported insolvent by tbe executors on tbe 1st November, 1841, and that gave tbe judge of tbe Orphans’ Court jurisdiction over it, as an insolvent estate, Clarke v. West, 5 Ala. 117. Tbe objection that only one of tbe executors signed tbe report, we do not consider fatal to its sufficiency. It was in tbe name of both, and verified by tbe oath of one. Tbe judge of tbe Orphans’ Court treated it as a sufficient report, by ordering a sale of tbe lands of tbe deceased. A new bond was required afterwards to be given, and was given by both of tbe executors, which, if necessary, we would hold to be an adoption by both of tbe act of one in reporting tbe estate insolvent. We therefore bold, that tbe court below properly decided to proceed with tbe matter, as of an insolvent estate, against tbe objection of tbe plaintiff in error.

After tbe estate was reported insolvent, and a sale of tbe lands ordered on tbe 9th November, 1841, nothing more seems to have been done towards tbe settlement of tbe estate, until tbe 1st January, 1844, when a new bond was given, agreeably to notice; and on tbe 27th February, 1845, an order was made, for creditors to file tbeir claims on or before tbe 1st September, and for publication of the order for six months. In tbe case of Boggs’s Adm’r. v. Branch Bank at Mobile, (12 Ala. 494,) this court has decided, that when an estate was declared insolvent previous to tbe act of 1843, but no progress was made in tbe settlement until afterwards, tbe subsequent action of tbe court should be regulated by that act. We consider this case in tbe court below to be in that condition, and tbe rule laid down in tbe case last above cited must govern. No progress was made in tbe settlement of tbe estate, at tbe passage of tbe act of 1843 “to amend tbe laws now in force in relation to insolvent estates,” (Clay’s Digest, 192, et seq.,) although it bad been previously reported insolvent; and tbe subsequent action of tbe Court of Probate must be regulated by that act. See also Martin v. Baldwin, 7 Ala. 923; McLaughlin, v. Nelms, 9 ib. 925; Branch Bank v. Steele, 10 ib. 915. It follows that tbe Court of Probate erred, in deciding to proceed with tbe settlement of tbe insolvent estate under tbe old law, against tbe objection of tbe plaintiff in error. For this error, tbe decision of tbe court below on this point is reversed, and tbe cause remanded.

The proceedings of tbe Court of Probate, in making tbe order, and giving notice to creditors to file their claims, as against an insolvent estate, agreeably to tbe law as it stood previously to 1843, was proper. This should have been done within a reasonable time, if not immediately after tbe estate was reported insolvent in 1841; and inasmuch as we are of 'opinion, under tbe authority of cases already decided by this court, (see 5 Ala. 117; 7 ib. 923; 10 ib. 915,) that no decree of insolvency was necessary, under tbe old law, to bring tbe estate fully within its provisions as an insolvent estate, it would not be consistent to determine that creditors should be held to the duty of filing their claims agreeably to tbe act of 1843; that is, within six months from the report of insolvency, regarding that as standing in tbe place of a decree of insolvency. They would, in such case, only be bound to file their claims within tbe time prescribed by tbe court under tbe previous law, not less than six, nor more than eighteen months, and tbe right to file claims would also be limited to tbe time so prescribed.

Tl;e notice having been given for creditors to file their claims under tbe old law, and tbe claims having been filed accordingly, tbe act of 1843 takes tbe case up at that point, and all further proceedings must be bad under it, Steele v. Knox, 10 Ala. 608. Tbe first thing now to be done is, for the Judge of Probate to appoint a day for tbe executors to make settlement of their accounts, and for notice to be given to creditors to attend on that day, at which time the court will proceed to settle with the executors, and the creditors will proceed to make choice of an administrator de bonis non; and the whole proceedings thenceforward will be governed by the act of 1843.

The law previous to 1843 made no provision for contesting claims between the creditors of an insolvent estate, and the act of 1843 says, that all objections to claims intended to be contested, shall be filed in writing in the clerk’s office, within nine months from the time when the estate is declared insolvent under that act. There is evidently, then, no provision by statute regulating the time within which such objections shall be filed, where the estate is reported insolvent under the old law, and is to be settled through an administrator de bonis non under the act of 1843, as in this instance. In such case, the common law rule would be, that the written objections should be filed within a reasonable time after the appointment of an administrator de bonis non.  