Holmes, J.
This is a bill in equity, brought under Pub. Sts. c. 136, § 26 et seq., by the executor of the will of Caroline A. Wood against the heirs and next of kin of Charles Wood, to charge them on a contract made by Charles Wood in respect of the sum paid out in the suit of Wood v. Bullard, 151 Mass. 324, 335. There is no question that the sum which the present plaintiff was compelled to pay in that suit was a claim against which Charles Wood covenanted to protect Caroline. The main questions are whether this proceeding is open to the plaintiff, and, if it is, whether the defendants are entitled to go to trial on the sanity of Charles Wood at the time he made the agreement, There is also a question of the measure of damages.
[423]*423Charles Wood covenanted four things: to protect Caroline Wood from a contract of hers under which her estate was compelled to pay in Wood v. Bullard ; that no claim should be made under that contract against her or her estate; that no objection should be made on account of it to her will; and to procure a release to Caroline from her contráetees. Charles Wood did not procure a release from all the parties with whom Caroline con tracted, but she had the instrument in her possession seemingly cancelled, and heard nothing of any claim on it during her life, nor was any claim made until May 10, 1887, after the two years statute had run against the estate of Charles. The suit of Wood v. Bullard was brought on May 31, 1887. The decision of the single justice was against all the plaintiffs, that of the full court was against all the plaintiffs but two. The decision in favor of the claim of those two was not announced until April 1, 1890, when the administrators of Charles Wood had only $6,303.42 in their hands, and that decision was not in favor of the two in the capacity in which they sued; so that there was no valid claim made until an amendment was allowed on November 21, 1890, at which date the administrators had fully administered. The claim was paid on May 20, and this suit was brought on May 21, 1891.
It is not argued seriously that the present claim against the heirs was barred by the running of the two years’ statute. The covenant to protect Caroline Wood was a distinct obligation, (Badger v. Titcomb, 15 Pick. 409, 413,) which was not broken until long after the two years had elapsed. Valentine v. Wheeler, 122 Mass. 566, 568. Aberdeen v. Blackmar, 6 Hill, (N. Y.) 324. But it is said that, under Pub. Sts. c. 136, § 13, the plaintiff might have presented his claim to the Probate Court, and might have obtained an order that Charles Wood’s administrators should retain assets to satisfy it, and that a neglect to take that proceeding is a bar to a suit against the heirs under § 26 et seq. Pratt v. Lamson, 128 Mass. 528. In Ames v. Ames, 128 Mass. 277, it was held that the Gen. Sts. c. 97, § 8, did not apply to a contract like this while it still was uncertain whether anything ever would be due under it, and if that case applies to the corresponding section of the Public Statutes it governs this. But it is said that the amendment incorporated from St. 1879, [424]*424c. 71, corrects that decision. As it reads now, “ a creditor of the deceased ” may present his claim, and if it appears “ that such claim is or may become justly due,” the court is to order assets to be retained. The words “ or may become ” have been inserted.
But the statute must be construed reasonably. It cannot have been intended to enable any one, who has an outstanding contract made by a deceased person, to suspend the. settlement of the estate indefinitely, without regard to the probability of anything becoming due upon the contract, and when it still is impossible for the Probate Court to form any estimate of what amount should be retained as “ sufficient to satisfy the same ” in the words of the statute. The meaning of the word “ creditor,” retained from the General Statutes, has not been changed so far as that. Furthermore, although we do not rely on this circumstance as sufficient in itself, if the plaintiff might have applied to the Probate Court, still, at the earliest date when he had the slightest reason for doing so, his claim could not have been provided for in full, and the amount to be reserved, if any, was a pure matter of speculation, and remained so until the estate was fully administered. See Wood v. Bullard, 151 Mass. 324, 332. We are of opinion that the plaintiff was not barred of his present proceeding by his failure to apply under §. 13. See Clark v. Holbrook, 146 Mass. 366, 368.
The next question is whether the defendants have a right to try the sanity of Charles Wood. It is found as a fact that his administrators ratified his agreement, if administrators can ratify a reasonable agreement of an insane intestate. This means, of course, that they effectually ratified, subject to the question of law mentioned. The grounds of the finding are not stated, and we cannot inquire whether they had sufficient knowledge, as we are asked to do. There is no doubt, and it is not disputed, that administrators can ratify such a contract. For that purpose they represent the person of their intestate restored to sanity. Wood v. Bullard, 151 Mass. 324, 329.
But it is said that, although the ratification estops the administrators, it is of no effect against the heirs. Ratification is not estoppel, but it is election, a different conception. Metcalf v. Williams, 144 Mass. 452, 454. When it operates, it operates not against the person ratifying, but on the contract, making it [425]*425as if perfect from the beginning. See Dempsey v. Chambers, 154 Mass. 380, 332. It would be anomalous if the contract could be rehabilitated as to one class of persons, and yet remain invalid as to another. Still, if the question arose at common law on a covenant which bound both heirs and administrators, it might be difficult. See Breckenridge v. Ormsby, 1 J. J. Marsh. 236, 248 ; Langley v. Langley, 45 Ark. 392, 397. Heirs represent the person of the deceased, as well as executors or administrators. Day v. Worcester, Nashua, & Rochester Railroad, 151 Mass. 302, 307, 308. Originally they alone represented him in the secular courts, and the executor had a different function. Bract., fol. 407 b, 61 a, b. In Clark v. Holbrook, 146 Mass. 366, 368, it was said that the heirs’ liability still was a liability on the contract. But however that may be, even apart from our statutes, executors and administrators have come to represent the person of the deceased “ more actually ” than do the heirs. Co. Lit. 209 a. Wms. Exrs. (8th ed.) 1731. Although at common law an heir could not plead that there was an executor who had assets, still, as between him and the executor, the personal estate in the hands of the latter was, as it still is, the primary fund for the, payment of debts. Wms. Exrs. (8th ed.) 1669. Robinson v. Simmons, 156 Mass. 123, 125, 126. Now the executor or administrator in ordinary cases is the only person liable, and the liability of the heirs is governed wholly by statute, standing alongside of that of devisees, legatees, and next of kin, as a mere liability to restore an amount not exceeding what they have received from the deceased. Pub. Sts. c. 136, §§ 26, 27. See Clark v. Holbrook, ubi supra.
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Holmes, J.
This is a bill in equity, brought under Pub. Sts. c. 136, § 26 et seq., by the executor of the will of Caroline A. Wood against the heirs and next of kin of Charles Wood, to charge them on a contract made by Charles Wood in respect of the sum paid out in the suit of Wood v. Bullard, 151 Mass. 324, 335. There is no question that the sum which the present plaintiff was compelled to pay in that suit was a claim against which Charles Wood covenanted to protect Caroline. The main questions are whether this proceeding is open to the plaintiff, and, if it is, whether the defendants are entitled to go to trial on the sanity of Charles Wood at the time he made the agreement, There is also a question of the measure of damages.
[423]*423Charles Wood covenanted four things: to protect Caroline Wood from a contract of hers under which her estate was compelled to pay in Wood v. Bullard ; that no claim should be made under that contract against her or her estate; that no objection should be made on account of it to her will; and to procure a release to Caroline from her contráetees. Charles Wood did not procure a release from all the parties with whom Caroline con tracted, but she had the instrument in her possession seemingly cancelled, and heard nothing of any claim on it during her life, nor was any claim made until May 10, 1887, after the two years statute had run against the estate of Charles. The suit of Wood v. Bullard was brought on May 31, 1887. The decision of the single justice was against all the plaintiffs, that of the full court was against all the plaintiffs but two. The decision in favor of the claim of those two was not announced until April 1, 1890, when the administrators of Charles Wood had only $6,303.42 in their hands, and that decision was not in favor of the two in the capacity in which they sued; so that there was no valid claim made until an amendment was allowed on November 21, 1890, at which date the administrators had fully administered. The claim was paid on May 20, and this suit was brought on May 21, 1891.
It is not argued seriously that the present claim against the heirs was barred by the running of the two years’ statute. The covenant to protect Caroline Wood was a distinct obligation, (Badger v. Titcomb, 15 Pick. 409, 413,) which was not broken until long after the two years had elapsed. Valentine v. Wheeler, 122 Mass. 566, 568. Aberdeen v. Blackmar, 6 Hill, (N. Y.) 324. But it is said that, under Pub. Sts. c. 136, § 13, the plaintiff might have presented his claim to the Probate Court, and might have obtained an order that Charles Wood’s administrators should retain assets to satisfy it, and that a neglect to take that proceeding is a bar to a suit against the heirs under § 26 et seq. Pratt v. Lamson, 128 Mass. 528. In Ames v. Ames, 128 Mass. 277, it was held that the Gen. Sts. c. 97, § 8, did not apply to a contract like this while it still was uncertain whether anything ever would be due under it, and if that case applies to the corresponding section of the Public Statutes it governs this. But it is said that the amendment incorporated from St. 1879, [424]*424c. 71, corrects that decision. As it reads now, “ a creditor of the deceased ” may present his claim, and if it appears “ that such claim is or may become justly due,” the court is to order assets to be retained. The words “ or may become ” have been inserted.
But the statute must be construed reasonably. It cannot have been intended to enable any one, who has an outstanding contract made by a deceased person, to suspend the. settlement of the estate indefinitely, without regard to the probability of anything becoming due upon the contract, and when it still is impossible for the Probate Court to form any estimate of what amount should be retained as “ sufficient to satisfy the same ” in the words of the statute. The meaning of the word “ creditor,” retained from the General Statutes, has not been changed so far as that. Furthermore, although we do not rely on this circumstance as sufficient in itself, if the plaintiff might have applied to the Probate Court, still, at the earliest date when he had the slightest reason for doing so, his claim could not have been provided for in full, and the amount to be reserved, if any, was a pure matter of speculation, and remained so until the estate was fully administered. See Wood v. Bullard, 151 Mass. 324, 332. We are of opinion that the plaintiff was not barred of his present proceeding by his failure to apply under §. 13. See Clark v. Holbrook, 146 Mass. 366, 368.
The next question is whether the defendants have a right to try the sanity of Charles Wood. It is found as a fact that his administrators ratified his agreement, if administrators can ratify a reasonable agreement of an insane intestate. This means, of course, that they effectually ratified, subject to the question of law mentioned. The grounds of the finding are not stated, and we cannot inquire whether they had sufficient knowledge, as we are asked to do. There is no doubt, and it is not disputed, that administrators can ratify such a contract. For that purpose they represent the person of their intestate restored to sanity. Wood v. Bullard, 151 Mass. 324, 329.
But it is said that, although the ratification estops the administrators, it is of no effect against the heirs. Ratification is not estoppel, but it is election, a different conception. Metcalf v. Williams, 144 Mass. 452, 454. When it operates, it operates not against the person ratifying, but on the contract, making it [425]*425as if perfect from the beginning. See Dempsey v. Chambers, 154 Mass. 380, 332. It would be anomalous if the contract could be rehabilitated as to one class of persons, and yet remain invalid as to another. Still, if the question arose at common law on a covenant which bound both heirs and administrators, it might be difficult. See Breckenridge v. Ormsby, 1 J. J. Marsh. 236, 248 ; Langley v. Langley, 45 Ark. 392, 397. Heirs represent the person of the deceased, as well as executors or administrators. Day v. Worcester, Nashua, & Rochester Railroad, 151 Mass. 302, 307, 308. Originally they alone represented him in the secular courts, and the executor had a different function. Bract., fol. 407 b, 61 a, b. In Clark v. Holbrook, 146 Mass. 366, 368, it was said that the heirs’ liability still was a liability on the contract. But however that may be, even apart from our statutes, executors and administrators have come to represent the person of the deceased “ more actually ” than do the heirs. Co. Lit. 209 a. Wms. Exrs. (8th ed.) 1731. Although at common law an heir could not plead that there was an executor who had assets, still, as between him and the executor, the personal estate in the hands of the latter was, as it still is, the primary fund for the, payment of debts. Wms. Exrs. (8th ed.) 1669. Robinson v. Simmons, 156 Mass. 123, 125, 126. Now the executor or administrator in ordinary cases is the only person liable, and the liability of the heirs is governed wholly by statute, standing alongside of that of devisees, legatees, and next of kin, as a mere liability to restore an amount not exceeding what they have received from the deceased. Pub. Sts. c. 136, §§ 26, 27. See Clark v. Holbrook, ubi supra. It does not exist except when the executors and administrators cannot be sued, and the same claim, if it had happened to accrue earlier, so that it could have been sued upon against the administrators, would have intercepted the property before it came to the defendants’ hands. For these reasons we are of opinion that the ratification of the contract by the administrator bound the defendants.
The last point argued for the defendants is, that at all events the measure of damages is the $7,000 paid by Caroline Wood to Charles Wood for his covenant. Her earlier contract was that she would not “ make any testamentary disposition of the trust fund ” left by her husband, “ and remaining at my decease,” [426]*426from going as the trust fund would go under her husband’s will, so far as she had not required the trustee to pay it over to her. It is said, and it is true, that she could have made her agreement ineffectual by calling on the trustee for funds, and using them in her lifetime. But the conclusion does not follow that her. failure to do so must cut down the damages. It was to save her from the necessity of doing so, presumably, that the new agreement was made. During her life she had no actual knowledge of any claim on it, or ground to suspect that there was any other than a formal one for not procuring releases from all the heirs. She had her own contract in her pocket, with the signature torn off, and undoubtedly never dreamed that it still might be held to be an existing obligation. Charles Wood’s covenant was a covenant of indemnity, inviting her to the very repose which she practised, and we see no reason why his heirs and next of kin should not make good the whole loss to her estate, subject to the limit indicated in § 27. Smith v. Way, 6 Allen, 212. Valentine v. Wheeler, 122 Mass. 566, 570. Mott v. Hicks, 1 Cowen, 513, 539, 540. Howard v. Lovegrove, L. R. 6 Ex. 43.
Decree for plaintiff.