not deal or contract with himself, but whenever funds belonging to the debtor estate and applicable to the payment of the creditor estate came into his hands, he was bound to treat the same as assets of the creditor estate, to the extent of the indebtedness. If mistakes occur in making transfer of such accounts, they may be corrected on settlement of his final accounts with the probate court. No formal "allowance" of the claim was necessary; but if it were, the credits endorsed upon the notes during the double relation, sufficiently show that such. allowance was made. We find no error in the record of the court of common pleas, for which the judgment of that court should have been reversed.15 Woerner's American Law of Administration (2d Ed.) § 408. Local statutes should be consulted. If in the case of Mutual Benefit Life Ins. Co. v. Howell, supra, there had been no bond, the court would probably have held the claim contingent and not provable until the existence of a deficiency was established. Terhune v. White, 34 N. J. Eq. 98 (1881). CONTINGENT CLAIMS.-On contingent claims, see 2 Woerner's American Law of Administration (2d Ed.) § 394; 58 L. R. A. 82, note. See, also, Zollickoffer v. Seth, reported post, p. 692. That in some states contingent claims must be presented within the time for presenting other claims, or they will be barred, though the estate has not been closed, see Barto v. Stewart, 21 Wash. 605, 59 Pac. 480 (1899). If a contingent claim becomes absolute within the time for presenting claims, and is not presented, it is barred. Jorgenson v. Larson, 85 Minn. 134, 88 N. W. 439 (1901). That a claim payable at the death of a particular person is not contingent, see Farris v. Stoutz, 78 Ala. 130 (1884); Brown's Ex'r v. Dunn's Estate, 75 Vt. 264, 55 Atl. 364 (1903). In the latter case it is said (75 Vt., at page 269, 55 Atl., at page 366): "The fact that the time of payment is uncertain does not make a claim contingent when, as in this case, the time of payment is sure to arrive at some future day. A contingent claim, within the meaning of V. S. 2517, is one that cannot be proved as a debt before the commissioners, or allowed by them, because the liability is dependent upon some future event which may or may not happen, and therefore cannot be determined within the time allowed for proving claims before the commissioners." So, also, the mere fact that an accounting is necessary to determine the amount due does not make the claim contingent. Davis v. Davis, 137 Wis. 640, 119 N. W. 334 (1909). 15 But see State v. Bidlingmaier, 26 Mo. 483 (1858). See Brown v. Green, 181 Mass. 109, 63 N. E. 2, 92 Am. St. Rep. 404 (1902), which holds that the executor need not present his own claim against the estate within the time fixed for presentation of claims, but may retain assets to pay it and account accordingly. See, also, Sanderson's Adm'rs v. Sanderson, 17 Fla. 820 (1880). In some states the matter is governed by special statute. See Farrow v. Mevin, 44 Or. 496, 75 Pac. 711 (1904). In still others the administrator must present a claim to himself or be barred, even though there is no statute specifically mentioning his case. In re Bright's Estate, 157 Mich. 220, 121 N. W. 748 (1909). In In re Ring's Estate, 132 Iowa, 216, 109 N. W. 710 (1906), the court refused to relieve the administrator from his failure to fle his claim through lack of knowledge that it was required. The court said: "His mistake was purely one of law, and due wholly to his own neglect. His only excuse is that he did not think it necessary to file claims. Surely that is not an equitable circumstance which will justify the relief sought." It should be noted that "the common-law rule allowing executors and administrators to retain for their own debts in preference to other creditors is repudiated, it is believed, in all the states." 2 Woerner's American Law of Administra SECTION 3.-PRIORITIES BETWEEN CLAIMS "At common law the personal representative was required to pay the claims against the estate of the decedent in the following order: (1) The necessary funeral expenses, the extent of which was fixed by the condition and rank of the decedent; (2) the necessary expenses of the administration; (3) debts of record due to the crown; (4) debts of record due to subjects, which included judgments, decrees, statutes, and recognizances; (5) debts by specialty, founded upon a valuable consideration, and debts for rent; (6) simple contract debts, based upon valuable consideration; (7) voluntary bonds or covenants; (8) other voluntary debts." 8 Am. & Eng. Ency. Law (2d Ed.) 1034.1 Duty of ancillary HOME CRS ADM - PAY OF (Supreme Court of Arkansas, 1903. 71 Ark. 218, 72 S. W. 373.) WHETHER ESTAT Petition by Georgiana A. Lewis and others for an order requiring A S R. B. Rutherford, administrator of the ancillary estate of G. W. Lewis, deceased, to pay over to the administratrix of the principal estate, in another state, so much of the assets in his hands as would give all creditors of the deceased an equal per cent. of their debts. From an order dismissing the petition, the petitioners appeal. Affirmed. Appellants presented to the probate court of Sebastian county a petition in which they state: *That the probate court of the Ft. Smith district of Sebastian county, Arkansas, had allowed $3,676.16 against the ancillary estate; that the probate court of Barry county, Missouri, had allowed debts amounting to $6,789.04 against the principal estate, and the assets in the hands of the primary administratrix, which included all of the property belonging to the estate, aside from that in the hands of said R. B. Rutherford, amounted to $868.53. Petitioners asked that out of the assets in the hands of R. B. Rutherford, ancillary administrator, a sufficient amount tion (2d Ed.) § 395. On the common-law right of retainer, see Davies v. Parry [1899] 1 Ch. 602. On whether a provision in a will for the payment of a debt dispenses with the necessity of presenting or proving the claim, see 15 Am. & Eng. Ann. Cas. 624, note. THE UNITED STATES AS CLAIMANT.—In U. S. v. Bean (D. C.) 120 Fed. 719 (1903), it was held that the United States, unless specially named, is not governed by the state statute requiring claims to be first presented to the executor or administrator for allowance before action can be maintained upon them. See, also, Pond v. Dougherty, 6 Cal. App. 686, 92 Pac. 1035 (1907). 16 In the United States the order of priority has been much simplified. by statutes. The local statutes should be consulted. WHOLE P INSOLVENT be set aside and turned over to G. A. Lewis, the primary administratrix, to give to all of the lawful creditors an equal per cent. of their debts. To this petition R. B. Rutherford interposed the following demurrer, to wit: "Now comes administrator herein, and demurs to the petition of Georgiana Lewis et al., and for cause thereof says that * * * it appears from said petition that petitioners reside in the state of Missouri, in which state the primary or domiciliary administration upon the estate of the said G. W. Lewis, deceased, is pending, and that the defendant administrator herein is the ancillary administrator of the said estate in Arkansas, and that there are debts due creditors residing in this state from the said estate, more than there are assets in this administration sufficient to pay off and discharge, so that, after the payment of the claims of the resident creditors, there will not be any estate remaining in the hands of this administrator." The court sustained the demurrer and rendered judgment dismissing the petition. WOOD, J.17 There are authorities which hold that it is the duty of an ancillary administrator to retain the funds in his hands for a pro rata distribution, according to the laws of the state of his administration, among the citizens thereof, having regard to all the assets, both in the hands of the principal administrator and the ancillary administrator, and having regard, also, to the whole of the debts which by the laws of either state are payable out of those assets. Dawes, Judge, etc., v. Head, 3 Pick. (Mass.) 128; Davis v. Estey, 8 Pick. (Mass.) 476; Miner v. Austin, 45 Iowa, 221, 24 Am. Rep. 763. Other authorities hold that it is the duty of the ancillary administrator to satisfy in full the creditors of his jurisdiction, even though the principal administration be insolvent. In other words, that it is the duty of the ancillary administrator to protect only home creditors. Wharton, Con. Laws, § 640; Minor, Con. Law, p. 250; Smith v. Bank, 5 Pet. 518, 8 L. Ed. 212. Our own court, in Shegogg v. Perkins, 34 Ark. 117, said: "The only duty devolving upon the [ancillary] administrator was to collect the assets here, and to appropriate so much of the avails of the same to the payment of debts due to our citizens as would be authorized by the general solvency or insolvency of the estate of the deceased, and remit the balance to the place of primary administration." This seems to recognize the former of the above views as correct. But this language of our court was dictum; the question in Shegogg v. Perkins being whether the ancillary administrator in Arkansas could allow the claim of a Tennessee creditor, as in the case of a local or Arkansas creditor. The question of insolvency was not involved. We are not called upon in this proceeding to decide between these con 17 The statement of facts is abbreviated, and part only of the opinion is given. flicting views. Because, even if it be conceded that the view as expressed in Shegogg v. Perkins as to the duty of the ancillary administrator be correct, still we are clearly of the opinion that the probate court, with its limited jurisdiction, is not the forum to determine the question of the general solvency or insolvency of the estate of the deceased, and the questions of the priorities and preferences under the varying laws of the different jurisdictions that might arise. between the creditors. The rules of procedure and the machinery of the probate court are not sufficient for this purpose. We are not called upon to decide whether appellants would have rights in a court of equity, and we do not decide that question. Affirmed.18 SECTION 4.-PRIORITIES OF CREDITORS OVER LEGA- to custan contingent prevent clam Daym أن SIMMONS v. BOLLAND. 562 (High Court of Chancery, 1817. 3 Mer. 547.) By indenture of lease dated the 23d of July 1798, the mayor and commonalty of Canterbury demised to Simmons (one of the aldermen of their corporation), his executors, administrators, etc., for thirty years, at a certain rent, and under covenants for payment of rent and taxes, and for repairs, etc., on nonperformance of all or any of which covenants, it was declared that the lease should be void, and a power of re-entry was reserved. Simmons, the lessee, by his will, gave all his real estates, and all his leaseholds and personal estate, to the defendant Bolland and another (whom he also appointed his executors), upon trust to sell; and after payment thereout of debts and legacies, to invest the produce in their names upon certain trusts, subject to which he gave the entire residue 18 In Ramsay v. Ramsay, 196 Ill. 179, 63 N. E. 618 (1902), it was held that creditors of an insolvent Illinois decedent, who had received part of their claims from the proceeds of property of the estate in Missouri, must deduct such amount before sharing in the assets in Illinois. The Missouri and Illinois statutes on the matter are there considered. A nonresident creditor will be allowed, either through comity (McKee v. Dodd, 152 Cal. 637, 93 Pac. 854, 14 L. R. A. [N. S.] 780, 125 Am. St. Rep. 82 [1908]), or of right, under the privileges and immunities clause of the United States Constitution (Goodall v. Marshall, 11 N. H. 88, 95, 35 Am. Dec. 472 [1840]), to present his claim, whether the administration is primary or ancillary. Compare In re Colburn's Estate, 153 Mich. 206, 116 N. W. 986, 126 Am. St. Rep. 479 (1908). That claims are barred under the statutes of nonclaim of one state is immaterial, if they are not barred under such statutes of the state where the claims are presented. Wilson v. Hartford Fire Ins. Co., 164 Fed. 817 90 C. C. A. 593 19 L. R. A. (N. S.) 553 (1908). See, also, 19 L. R. A. (N. S.) 553, note. of his estate to the plaintiff on his attainment of the age of twentyfive years. The testator died in 1807, leaving the plaintiff his son, then a minor. The trustees and executors proved the will, possessed themselves of the whole of the testator's estate real and personal, and paid the debts and legacies without resorting to a sale of the real estate or of the leaseholds, into the possession of which (including the premises demised by the said indenture of lease) the plaintiff, on his attaining twenty-five, entered; at which time also, the entire residue of the personal estate was transferred to him by the executors, except a bond for £1,000 from the mayor and commonalty of Canterbury, under their common seal, to the testator; and a sum of £800, 5 per cents., which were still retained by them out of the surplus, and for the recovery of which the present bill was filed. To this bill the defendant, the surviving trustee and executor, by his answer submitted that he was entitled to retain the property in question, "for the purpose of protecting himself from any claim which might be made against him as devisee in trust and executor of Simmons deceased, in respect of rent due or thereafter to accrue due for the premises demised by the said indenture, or of the present or any future breach or nonperformance of any of the covenants therein contained, the payment of which rent, and performance of which covenants, the defendant was advised he was liable to under the said indenture," and had actually then lately received a notice to that effect from the corporation. He at the same time admitted that there were then no subsisting breaches of covenant in respect of which he was so liable, and that no rent was then due or in arrear for the premises, but insisted that, under the circumstances, he was entitled to retain as aforesaid, in respect of any future contingent demands, to which the notice given by the corporation also extended. THE MASTER OF THE ROLLS [Sir WM. GRANT]. The equitable relief sought in this case depends upon a legal question, whether an executor can safely make payment of legacies, or deliver over a residue while there is an outstanding covenant of his testator, which has not yet been, and never may be broken. This question was very much discussed in a case (of Eeles v. Lambert) reported both by Styles and by Aleyn (Styles, 37, 54, 73; Aleyn, 38), the ultimate judgment in which is not, however, stated by either. There is also a case of Nector and Sharp v. Gennet, in Cro. Eliz. 466, where the same question arose, though in a different shape. A legatee sued in the ecclesiastical court. for his legacy. The executors pleaded that the testator, who was keeper of a prison, was bound in an obligation to the sheriff (to an amount exceeding the entire value of his property) for the safe keeping of the prisoners committed to his charge; which obligation had become forfeited in consequence of a judgment against the sheriffs on an action for an escape; and the executors had therefore nothing in their hands to answer the demand. This plea was disallowed, whereupon a pro |