
    John Hooker, Judge, &c. versus Asa Olmstead et al.
    
    
      Sept 26th
    
    Where a creditor of an intestate estate represented insolvent, had his whole claim allowed by the commissioners, notwithstanding it was partially secured by a mortgage, and received a dividend upon the whole, he was held to have waived his security by the mortgage.
    Where an administrator appointed here takes out letters of ancillary administration in another State, and thereupon collects debts of citizens of such State, and sells land there situate, the administration of such assets is not covered by his bond given here, but he will be presumed to have rightly accounted for the same in such other State.
    But moneys received in another State, of debtors living here, are to be accounted for in this State.
    Where, in an action on an administration bond, a forfeiture was confessed and the parties were heard in chancery, it was held, that the execution against the administrator might include sums received by him since the commencement of the action.
    Debt upon a bond given to the judge of probate oí the county of Hampden, by Asa Olmstead as principal, and the other defendants as sureties, for the faithful administration of the estate of David Olmstead, deceased, intestate. The defendants confessed a forfeiture, and the case was referred to auditors.
    By the report of the auditors it appeared, that the estate of the intestate was represented to be insolvent. The plaintiff alleged that the administrator had been guilty of maladministration in regard to a debt due to Rufus Flynt' This claim, amounting to 937 dollars 64 cents, was stated to have been allowed by the commissioners of insolvency, with the administrator’s assent, as a debt secured by a mortgage. The order of distribution was made upon the whole of the debt, instead of its excess above the value of the land mortgaged, and the sum of 813 dollars 87 cents was decreed to be paid to Flynt. The mortgaged premises were conveyed to Flynt in part-payment of his debt, namely, to the amount of 700 dollars, and the sum of 110 dollars was paid to him in cash. If the order of distribution had been made only upon the excess of Flynt’s debt above the value of the land, he would have been entitled to 74 dollars more than he received under the actual distribution. The administrator, in exceptions to the auditors’ report, denied that the claim of Flynt was allowed by the commissioners with his knowledge as a debt secured by mortgage ; and he contended that it did not lie with the plaintiff to object to his own decree.
   By the Court.

Inasmuch as the creditor filed his claim generally with the commissioners, and a distribution was decreed upon an allowance of the whole claim, we think he waived his right under the mortgage.

It further appeared, that Asa Olmstead, after his appointment as administrator in this State, also took out letters of ancillary administration in the State of Connecticut, where he received assets by the collection of debts and the sale of land. The estate was there represented insolvent, and certain sums were returned by commissioners of insolvency as due to certain Connecticut creditors, which were paid in full by the administrator, as appeared by his first administration account settled in Connecticut. Upon an extension of the time for receiving claims, other debts (being those of the Massachusetts creditors) were allowed by the commissioners, upon which a dividend was decreed of the balance of the money received in Connecticut. The plaintiff contended, that the Connecticut creditors who were paid in full, ought not to have received more in proportion than the creditors in Massachusetts. To this point his counsel cited Stevens v. Gaylord, 11 Mass. R. 256, [Rand’s ed. 264, note a ;] Dawes v. Head, 3 Pick. 128, [2nd ed. 147, note 1.] The counsel on the other side referred to Austin v. Gage, 9 Mass. R. 395; Doolittle v. Lewis, 7 Johns. Ch. R. 45; Riley v. Riley, 3 Day, 74; Slocum v. Sanford, 2 Connect. R. 533, 535; Bush v. Sheldon, 1 Day, 170; Brown v. Lanman, 1 Connect. R. 467; Jacobs v. Hull, 12 Mass. R. 25; Stevens v. Gaylord, ubi sup.

Bates and G. Bliss junior, for the plaintiff.

G, Bliss senior and Lathrop, for the defendants.

By the Court.

The plaintiff is not entitled to execution for the sums collected in Connecticut from debtors living there and from the sale of the real estate. They do not come within the bond, and it is to be presumed that the administrator has rightly accounted for them in that State. Two small sums however, which were accounted for there, were received of debtors belonging to this State ; and for those he is bound to account here, though he may have received the payment in Connecticut.

Some debts were collected by the administrator since this action was commenced, and it was contended by the defendants that the execution to be issued ought not to include these sums ; but the Court said, that as this was a hearing in chancery, they might be taken into consideration. 
      
       See Peck v. Mead, 2 Wendell, 471; Story’s Confl. Laws, 437, 438.
     
      
       See Story’s Confl. Laws, 431, note 2, and cases cited, 423 • Revised Stat. t 70, § 23; Dawes v. Head, 3 Pick. (2nd ed.) 147, note 1.
     