
    John H. Dundas, Administrator, etc., plaintiff in error, v. Francis M. Chrisman, defendant in error.
    3. Administration of Estates: claims: frauds. A claim for §588.08 was filed, against an estate and was allowed to the extent of §385.11. Other claims were allowed against the es- . tate, which, with the aforesaid §385.11, the administrator paid in full. After the allowance of the §385.11, as first stated, the claimant and his attorney went before the county judge, in the absence of the administrator and without notice to him, and by false representations induced the county judge to allow the entire claim, of which fact the administrator had no notice until after the time to appeal had elapsed, there being a good defense against the excess of the claim so allowed. Held, That as a, court of law could grant no relief a court of equity would.
    2. -: duties OF administrator. The care, prudence, and judgment which the man of fair average capacity and ability exercises in the transaction of his own business, furnishes the standard to govern an administrator in the discharge of his trust duties.
    Error to the district court for Nemaha county. Tried below before Appelget, J.
    
      G. B. Beveridge, for plaintiff in error,
    cited: Pomr. Eq., Secs. 823,836,837. Loomis v. Armstrong, 29 N. W. Rep., 870. LCee v. Kee, 2 Gratt., 117. Betters v. Fanoell, 13 N. W. Rep., 319. Johnson v. Johnson, 26 Oliio St., 357. Allen v. Clark, 2 Blackf., 343. Oliver & Baum v. Bray, 4 Ohio, 193. Shoemaker v. Brown, 10 Kas., 392. Darrah v. Boyce, 29 N. W. Rep., 102.
    
      G. W- Cornell, for defendant in error,
    cited: Loose-more v. Smith, 12 Neb., 343. Kirk v. Bowling, 20 Neb., 263. Code of Civil Procedure, Sec. 580. Rogers v. Redick, 10 Neb., 332. State v. Meeker, 19 Neb., 450. Pomr. Eq. Jur., Yol. 3, Sec. 1154, p. -96-106 in., and foot-notes. Cox v. John, 32 O. St., 532. Abbott’s Ex’rs-v. Cole’s Adm’s, 5 O., 87. Rogers v. Weaver, 5 O., 536.
   Maxwell, J.

The plaintiff brought an action in the district court of Nemaha county to enjoin the collection of a certain claim against the estate of David Chrisman. A demurrer to the petition was sustained in the court below, and the action dismissed.

The cause of the action is set forth in the petition, as-follows: “ The plaintiff states that he is the duly appointed administrator of the estate of David Chrisman, deceased, and was acting as such at the time of the happening of the things herein complained of; that on the-30th day of June, 1887, defendant filed a claim in the-sum of $588.08 in the probate court, Nemaha county,. Neb., against said estate; that said claim was by the said court set for hearing on the 5th day of July, 1887; that at the hearing thereof plaintiff and defendant were present ; that after the hearing of the evidence in support of said claim, lion. Jarvis S. Church, judge of said court, announced in his decision that, while he was in doubt as. to the validity of a portion of said claim, he would allow the same in a sufficient sum to cover the surplus of the-assets of said estate after all other debts and liabilities, were paid, or in the sum of about $385.11 ; that thereupon this plaintiff, relying upon said decision, and believing said claim was only allowed in the sum of about $385, left the court room; that afterward, and in the absence of plaintiff, said defendant and his attorneys falsely informed and led the said court to believe that said estate was solvent and would have sufficient funds to pay all liabilities after allowing said claim in full, thereupon said court, relying upon and believing said false statements of defendant and his attorneys true, did change its decision, and. allow said claim in full in the sum of $588.08; that at the time of the allowance of said claim the total assets of said estate were as follows: $168.17 realized from the sale of personal property and debts owing to said estate which plaintiff had collected, besides one note of defendant and Margaret A. Chrisman, dated July 17, 1886, for $335, and one note of defendant, dated January 31, 1887, for $161.25, botli of said notes being secured by mortgage-on real estate; that prior to the allowing of said claim, this plaintiff had paid out on account of said estate, on claims allowed, as follows:

Funeral expenses and last sickness................. $112 25
Other claims and expenses............................ 152 45
Court costs of administration........................ 44 50
Admr’s commission, and expenses allowed......... 50 00
Total paid out by plaintiff........................ $359 20
Total cash received................................. 168 17
Overpaid by administrator........................ $191 03
“That in making said payments plaintiff believed said claim was allowed only in the sum of about $385, and’ said estate was solvent; that this plaintiff was not ap-. prised of or informed that said court had allowed said-claim in full for the sum of $588.08 until about the 4th, day of February, 1888, and long after the time for taking-an appeal had elapsed. Plaintiff avers and has reason to. believe, and does believe, that the court allowed said claim-in full under a misapprehension and mistake as to the facts and condition of said estate and said claim, obtained from defendant and his attorneys. This plaintiff further avers that he had and has a good and valid defense to said claim in the sum of about $200, but was prevented from pi-esenting the same on the day of said allowance, or per foe -> ing his appeal from said allowance, by reason of being so informed by the court that said claim if allowed at all would only be allowed in the sum of about $385. Plaintiff further alleges that, on the 29th day of February, 1888, and as soon as he discovered said claim had been erroneously allowed in the sum of $588.08, he filed a motion with the said probate court to set aside said allowance, and for a rehearing of said claim, which motion was disallowed by the court, whereby said plaintiff has exhausted his remedy at law. Plaintiff further avers that if said claim is allowed to stand in the sum of $588.08 against said estate, said estate will be rendered totally insolvent, and your petitioner will have paid out $191.17 more than he has received on account thereof, for the reimbursement of which this plaintiff will have no remedy, and will have been damaged in the sum of $191.17.”

■ If the allegations, of the petition are true, the defendant and his attorneys, in the absence of the plaintiff and without notice to him, appeared before the county court and informed that court that the' estate was solvent,' and that the claim should be allowed in full, being $588.08, and the court was induced by such misrepresentations to make such allowance. The claim for $385.11 is alleged to have been allowed on the 5th day of July, 1887. The exact date at -which the full claim of $588.08 was allowed does not appear, but the plaintiff alleges that he was not apprised of the allowance of the same “until long after the time for taking an appeal had elapsed.” It is also alleged that the' plaintiff has a valid defense to said claim of $588.08.

We think sufficient is shown to entitle the plaintiff to relief. The defendant could not, by making false representations to the county judge as to the amount of the estate, secure the allowance of a claim to which he was not.entitled, and this without notice to the administrator. It seems to have been well known to all parties that if the claim was allowed in full the estate would not pay the full amount of the debts proved against it. The character of this claim is not set out, nor are we informed of the nature of the defense against it, nor why the deduction was made in the first instance. No doubt, however, there was good cause for making such deduction, and if afterwards the county judge saw fit to change the judgment by increasing the amount allowed, the administrator should have been informed of that fact so that he could appeal if he saw fit. The judgment being rendered in his absence and without notice to him, and he having a good defense thereto, the case falls within the rule laid down in Horn v. Queen, 4 Neb., 108, 5 Neb., 472.

There is an additional reason why the judgment should be reversed. If the allegations of the petition are true, the excessive allowance will become a personal debt against the administrator. The rules governing the duties of an administrator are very clearly set forth by the supreme court of Michigan in Loomis v. Armstrong, 29 N. W. R., 870, as follows: “The law requires, when an administrator is appointed for a person dying intestate, that he shall • take charge of all the personal estate of the deceased, collect in, and convert the same into money, so far as is necessary to pay the debts of the deceased, and make proper distribution'of the balance remaining to the persons lawfully entitled thereto, and to, pay any othpr sum to the widow and family of the deceased, pending his .administration, which may be ordered or decreed by the probate court, and when he has done this, and at such other times as the court may require, render an account of his doings to the court. In doing these .things the administrator is required to exercise the ordinary .prudence, care, and judgment of men doing the kind of business the deceased was engaged in at the time of his death. It is not the highest degree of skill or care, nor the best management and judgment that the law.requires. This would be requiring too much, as will be readily seen, for that would require capacity and ability which would insure success and is not possessed by more than one-tenth of the persons who engage in business generally. It is the care, prudence, and! judgment which the man of fair average capacity and ability brings to bear in the transaction of his own business that furnishes the standard by which the administrator in the performance of his trust duties must be governed.”

The administrator in this case seems to have acted in good faith in paying the claims allowed July 5, 1887, in full, and as he has no remedy at law, the court will grant him relief.

The judgment of the district court is reversed, and the cause remanded for further proceedings

Reversed and remanded.

The other judges concur.  