
    Mary S. Darby, Administratrix v. Creditors of R. A. Darby.
    An administratrix allowed sums expended for the clothing and necessary maintenance and education of intestates children prior to due notice and application of creditors, whilst the estate was deemed solvent. Commissions allowed on such sums. Moderate and reasonable advances in support of the family allowed, where the estate is bona fide thought to be solvent, and made prior to application of creditors, whose demands would make the estate insolvent. Commissions also allowed if the accounts are regularly rendered to the ordinary.
    The late Robert A. Darby died in the year 1819, and his widow administered on his estate and effects. She took the usual steps and gave the usual notices to creditors. And upon such demands as were sent in within the usual time, she proceeded to make payment. Of the debts of the estate she also paid bills to the amount of §165 99 cents, from the 7th of October, 1819, to December 5th, 1819, for mourning- for the family. She also expended the sum of §596 39 cents, from the death of her husband to the 1st of February 1821, for household expenses in maintaining herself and six children, and for the education of the children. The expenditures for the benefit of the family were objected to by the creditor Packard, as prejudical to the legal rights of the creditors, who would be injured by the allowance of these sums, the estate being insolvent. As soon as the administratrix discovered that the estate was insolvent, she deposited the funds in the hands of the master, and filed this bill of interpleader.
    The master considered these expenditures for the support of the farn-i’y as illegal, and rejected them.
    *The complainant excepted to the master’s report, on the ground that the sums in question had been expended by the administratrix for the clothing and maintenance of the intestate’s children prior to due notice and application of creditors, and whilst the estate was deemed perfectly solvent.
    DeSaussure, Chancellor. The exception to the report is founded on this, that the sums in question were expended by the administratrix for the clothing and necessary maintenance of the intestate’s children prior to due notice and application of creditors, and whilst the estate was deemed perfectly solvent. The situation of executors and administrators is exceedingly embarrassing in many cases of estates in their hands. The deceased often leaves a good deal of property and a family accustomed to live in comfort on that property. The real situation of the estate, as to the debts is not and cannot be known with any certainty for a considerable time. To refuse support to the family would be considered hard and unjust on mere apprehension of danger of insolvency. To make the requisite advances at the risk and responsibility of the executors and administrators, is requiring more than can be reasonably expected in the common course of life. In this dilemma the sound principle would be to allow moderate and reasonable advances made for the support of the family, in the bona fide expectation that the estate was solvent, and made prior to the application of creditors, whose demands would make the estate insolvent. Thus Chancellor Kent in the case of Thompson v. Brown et al. 4 Johns. Cha. Rep. 619, 645, says, “I am not disposed to call the mother to account for rents and profits (even of real estate) so received and expended” — that is for the support of the children. And he further says, “the guardian ought not certainly be reanswerable for rents *and profits applied for the support of the infants prior to any due notice from the creditors.”
    The important statute of the 13th of March, 1789, recognises the principle ; for in section 27, (see Grimke’s Pub. Laws, p. 424) it directs executors and administrators to give three weeks notice by advertisement, or otherwise, for creditors to render an account of their demands, and they shall be allowed twelve months to ascertain the debts due to and from the deceased, to be computed from the probate of the will, or granting letters of administration ; and creditors neglecting to give in a statement of their debts within the time aforesaid, the executors and administrators shall not be liable to make good the same. Now in the case before us, it is alleged, and not contradicted either by the pleading or in the argument, that the notice was given by the administratrix, and that the heavy demand which renders the estate insolvent was not brought forward in due time; whereupon the administratrix proceeded to pay off bond debts, and some simple contract debts, and to pay the expenses of the family on the supposition of the solvency of the estate. Upon this state of facts, I must say with Chancellor Kent, that I am not disposed to call the mother to account for rent and profits so received and expended ; and I must say with our statute that the executors and administrators are not bound (under such circumstances) to make good the same. It is therefore ordered and decreed, that the exception be sustained and the report overruled. As to the question of commissions, as the money was rightfully paid, the commissions must be paid if the accounts were regularly rendered before the ordinary.
    From this decree an appeal was taken up on the following grounds :
    *First. That the report of the master should have been sustained. The items struck out of the account by him not having been expended in due course of administration according to the provisions of the act of 1789.
    Second. That his honor the chancellor was mistaken in point of fact in supposing that the creditors did not present statements of their demands, as would appear from the vouchers themselves presented by the administratrix, and now in possession of the master in equity, and referred to by the administratrix in the exhibit filed by her with the biH.
    April 4, 1827.
    Furman, for the appellants.
    Distribution is not to be male until after the expiration of one year. He cited Toller, 245. Salk. 29G. 3 Atk. 299. 3 Bacon, 89- The case from 4 Johns, is not applicable. An executor is a trustee for creditors.
    J. E. Holmes, in reply,
    cited 1 Vern. 369. Amb. 219. 3 Ves. 565. 5 Ves. 843. Courts look on the conduct of executors and trustees with great indulgence, and are reluctant to charge them when they have acted with apparent fairness.
   The court of appeals delivered no opinion, but entered an order confirming the decree of the chancellor-

Decree affirmed-  