
    William Walker, Appellant, &c. versus The Administrators of Elihu Lyman.
    A judge of probate has authority, within eighteen months from the gran/ng of a commission of insolvency, to extend the time for creditors to present their claims, notwithstanding the report of the commissioners may have been made and accepted.
    Where a judge of probate refuses the petition of a creditor praying for such an extension, an appeal will lie.
    Where an attorney, having collected money for a client who lived out of the Commonwealth, died, and the client, upon bearing of the death, used due diligence to have his claim presented against the estate, but found that a commission of insolvency had been granted and a report of the commissioners had been made and accepted, but no decree of distribution had been passed, and eighteen months had not elapsed from the granting of the commission, it was held that the commission ought to be re-opened, in order that he might have an opportunity of laying his claim before the commissioners.
    Elihü Lyman, of Enfield in the county of Hampshire, died in February, 1826. On the 11th of April following, his estate was represented to the judge of probate to be insolvent, and thereupon a commission of insolvency was granted and ten months (afterwards extended to thirteen months) were allowed to the commissioners to receive, examine and report on the claims of creditors. On the second Tuesday of August, 1827, which was after the report of the commissioners had been accepted by the judge of probate, but before any order of distribution had been passed, a petition was presented to the judge by William Walker of Cooperstown, in the State of New York, alleging that in 1820 he remitted to Lyman, who was an attorney at law, three notes signed by one Scott, for collection ; that the notes were for the sum of 340 dollars, payable in three and four years from April, 1818 ; that Lyman, in 1821, paid him about 250 dollars on account of the notes ; that he heard nothing further upon the subject of the note last, due, until he was told of Lyman’s death, when he ascertained that the note had been paid, that Lyman’s estate had been represented insolvent, commissioners had been appointed, and a report had been made on the. 17th of May, 1827, whereby he was barred from presenting his claim. The petition concluded with s prayer that the commission might be re-opened, and a day be given to the petitioner to present his claim to the commissioners. The judge of probate, thinking that there was not sufficient reason for a further extension of the time lowed .0 creditors to exhibit their claims, decreed that the petition could not be granted. From this decree the petitioner appealed ; — 1. Because, living at the distance of 160 miles from the place where the commissioners sat, he never heard of their session : —2. Because, when he heard that the commission had closed, he made immediate application to the judge of probate to have it extended : — and 3. Because, having a just claim against the estate of Lyman, he would lose the same unless the commission were ex tended.
    
      Sept. 22d,
    
    The petition was supported by affidavit.
    Doolittle, for the respondents,
    contended that after a return by the commissioners has been accepted and recorded and twenty days have elapsed without any appeal claimed, it is the duty of the judge of probate to order a distribution, and the creditors whose claims have been allowed are entitled to the funds in the hands of the administrator, to the extent of their claims. St. 1784, c. 2. But admitting that the judge had the power to extend the commission, it was a matter within his discretion, and so this appeal will not lie. It is true the St. 1817, c. 190, § 7, enacts that any person aggrieved at any decree of a judge of probate may appeal; but there must of necessity be some limitation of this right of appeal, as otherwise the settlement of estates would be attended with insuperable embarrassments. Lamphear, v. Lamprey, 4 Mass. R. 107; Tappan v. Bruen, 5 Mass. R. 193. The course prescribed by St. 1784, c. 2, must be strictly pursued. Gedney v. Tewksbury, 3 Mass. R. 307; Bigelow v. Cambridge &c. Turnp. Corp. 7 Mass. R. 202; Hinsdale v. Larned, 16 Mass. R. 70. The determination by the judge of probate of the time for presenting claims to the commissioners, operates like the statute of limitations upon any claim not presented within the time allowed.
    Ashmun, for the petitioner,
    insisted that an appeal lies, in all cases, from a decree of a judge of probate; that as a distribution had not been ordered, there was no reason, in substantial justice, for not extending the commission ; St. 1816, c. 62; and that the present claim was entitled to favor, inasmuch as it was made by a person living out of this State, and was for money collected by an attorney for his client.
    Sept. 26th.
   Per Curiam.

We think the judge of probate had the power, and that under the circumstances it was his duty, to grant this petition. It was presented a considerable time before the expiration of the eighteen months allowed by the statute for keeping open the commission. The mere return and acceptance of the report of the commissioners will not prevent the allowance of further time to creditors to present their claims. The decree is reversed, and the commission is to be extended for the term of one month. 
      
       See Revised Stat. c. 68, § 4; Todd v. Darling, 2 Fairfield, 34.
     