Chancellor.
The only allegation of the bill which I deem it necessary to notice, in this motion, is the one, that the estate of Neibert has been represented by the administrators, to the Probate Court, to be insolvent. This is averred by the bill, is proved by the exhibit, and is not denied by the answer. I do not deem it essential to the inquiry upon this motion, to investigate the history of the proceedings of the administrators, beyond the point of the representation of the insolvency of the estate. The record presented with the bill is defective; the order, appointing the commissioners of insolvency, is erroneous, if not absolutely void; yet, defective as the record is, it is sufficient to show that there has been a representation of insolvency, and to that extent the proceedings in the Probate Court seem to have been regular enough. Does such [607]*607a representation inhibit the enforcement of a judgment against the estate, rendered prior to that representation, is the point presented for my decision. This question involves a construction of several sections of the probate law, regulating the administration of insolvent estates.
It is provided by the statute (How and Hutch. 409, sec. 80), that when the estate,,,both real and personal, shall be insolvent, or insufficient to pay all just debts which the deceased owed, the executor or administrator is required to exhibit, before any debts are paid to any creditor, except privileged debts, an account and statement of the situation of the estate, including lands, tenements, &c. of the testator or intestate; and if, thereupon, it appears to the Orphans’ Court, that the estate is insolvent, then the Court, after ordering sale of the lands, tenements, &c., is required to appoint commissioners, to receive and audit claims against the deceased; and, upon report by them, the Court must order the executor or administrator to pay the proceeds, pro rata, to the creditors who are reported such by the commissioners. The same section of the statute provides, that no suitor action shall be commenced or sustained, against the executor or administrator after the estate of the testator or intestate is represented insolvent; by the 98th section of the same act (How. and Hutch. 415) it is further provided, that a suit already brought, or pending, may be prosecuted to judgment, notwithstanding the representation of insolvency, but that no execution shall issue, and that the claim must be filed with the commissioners.
The bill expressly charges, and shows by its exhibits, that the representation of the insolvency of the estate has been formally made to the proper tribunal, and prays that an execution, upon a judgment against the administrators, which the defendant is pressing against the estate, may be enjoined. The matters set up by the defendant, in avoidance of this charge, and in answer to it, call upon me to give a construction to the various acts upon the subject.
1. It is, in the first place, strenuously urged by the defendant, that no legal representation of insolvency has been made in this case; and it is insisted, that the record discloses a want of power in the Probate Court, under the statute, and in the present condition of the [608]*608estate, to entertain such a representation ; because, it is said, that such a representation can only be made when there has been a sale of the estate, both real and personal, of the deceased, and it has been reduced to money, and the executor or administrator, from a comparison of the proceeds of the sales with the debts of the testator or intestate, can safely represent, whether the estate is insolvent or not. It is attempted to sustain this view of the statute, by a reference to its language, which declares, that when the “estate, real and personal, shall be insolvent,” &c.; and which also orders, that “ the residue of the estate, real and personal, after paying funeral expenses,” &c. “shall be distributed,” &c.; the inference being thence drawn, that, inasmuch as it was clearly the intention and contemplation of the act, that the entire estate, both real and personal, should be sold and reduced to money, before the pro rata distribution required could take place, so also it was equally its intention and requisition, that it should be so reduced, before the estate could be known, and so represented, to be insolvent. The position is not a tenable one. It must be at once apparent, upon taking the whole statute together, that the representation of insolvency, upon which all proceedings against the estate were to cease, must, or at least, may take place before a sale. The statute is express, that if it appear to the Orphans’ Court that the estate is insolvent, it shall proceed, after ordering a sale of the lands, &c., to appoint commissioners to effect distribution. It is clear, then, that the insolvency of the real and personal estate, spoken of in the first part of the section, is not an insolvency, ascertained beyond question, by a direct comparison of the cash proceeds of the real and personal estate, reduced to money; because, when this insolvency has been made to appear to the Orphans’ Court, they are directed to order a sale of the realty, which, upon the construction contended for, must already have been effected, and the proceeds reduced into the possession of the executor or administrator. Such a construction as that contended for, is not only repugnant to the tenor and words of the statute, but would destroy and render of no effect all its provisions. Long before the estate, under the slow process of administrator’s and executor’s sales, could be reduced to money, judgment and executions thereon against the administrator or executor, which there [609]*609would have been no power to stay or resist, would have swept away the persona] estate, and perhaps have rendered an estate wholly insolvent, that might, under the more guarded and restricted mode, provided by a proper construction of the act, have yielded a large dividend. I cannot sanction a construction so subversive of the very object of the law. The power of the Probate Court, in regard to all matters regulating insolvent estates, is necessarily one involving great discretion in the probate judge. If that discretion be exercised improvidently or injuriously, and it'be made to appear so in the record, there is a tribunal with ample power to correct it. I cannot doubt, that where, from a fair estimate of the value of the entire estate of the deceased, the administrator or executor is satisfied that it is (both real and personal) “ insufficient to pay all just debts which the deceased owed,” that, acting under the solemn responsibilities of an oath, faithfully to discharge his duties to the estate, he is bound to represent the condition of the estate to the Probate Court, for its action. Upon that representation, the court must act, and if satisfied that the entire estate is insolvent, must proceed to order sales of the realty; but it is not necessary to wait for that order of the Court, before the representative of the deceased can check any attempts, on the part of any creditor, to force out of the estate an undue portion, to be applied to his debt. For the statute is equally explicit, that, upon the representation of insolvency, no action or suit shall be commenced or sustained against him. Such a representation, in full compliance with the words and spirit of the act, has been made in this case; is the defendant commencing or sustaining an action or suit against him ?
2. This brings me to the second position, that I shall notice, taken by the defendant.
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Chancellor.
The only allegation of the bill which I deem it necessary to notice, in this motion, is the one, that the estate of Neibert has been represented by the administrators, to the Probate Court, to be insolvent. This is averred by the bill, is proved by the exhibit, and is not denied by the answer. I do not deem it essential to the inquiry upon this motion, to investigate the history of the proceedings of the administrators, beyond the point of the representation of the insolvency of the estate. The record presented with the bill is defective; the order, appointing the commissioners of insolvency, is erroneous, if not absolutely void; yet, defective as the record is, it is sufficient to show that there has been a representation of insolvency, and to that extent the proceedings in the Probate Court seem to have been regular enough. Does such [607]*607a representation inhibit the enforcement of a judgment against the estate, rendered prior to that representation, is the point presented for my decision. This question involves a construction of several sections of the probate law, regulating the administration of insolvent estates.
It is provided by the statute (How and Hutch. 409, sec. 80), that when the estate,,,both real and personal, shall be insolvent, or insufficient to pay all just debts which the deceased owed, the executor or administrator is required to exhibit, before any debts are paid to any creditor, except privileged debts, an account and statement of the situation of the estate, including lands, tenements, &c. of the testator or intestate; and if, thereupon, it appears to the Orphans’ Court, that the estate is insolvent, then the Court, after ordering sale of the lands, tenements, &c., is required to appoint commissioners, to receive and audit claims against the deceased; and, upon report by them, the Court must order the executor or administrator to pay the proceeds, pro rata, to the creditors who are reported such by the commissioners. The same section of the statute provides, that no suitor action shall be commenced or sustained, against the executor or administrator after the estate of the testator or intestate is represented insolvent; by the 98th section of the same act (How. and Hutch. 415) it is further provided, that a suit already brought, or pending, may be prosecuted to judgment, notwithstanding the representation of insolvency, but that no execution shall issue, and that the claim must be filed with the commissioners.
The bill expressly charges, and shows by its exhibits, that the representation of the insolvency of the estate has been formally made to the proper tribunal, and prays that an execution, upon a judgment against the administrators, which the defendant is pressing against the estate, may be enjoined. The matters set up by the defendant, in avoidance of this charge, and in answer to it, call upon me to give a construction to the various acts upon the subject.
1. It is, in the first place, strenuously urged by the defendant, that no legal representation of insolvency has been made in this case; and it is insisted, that the record discloses a want of power in the Probate Court, under the statute, and in the present condition of the [608]*608estate, to entertain such a representation ; because, it is said, that such a representation can only be made when there has been a sale of the estate, both real and personal, of the deceased, and it has been reduced to money, and the executor or administrator, from a comparison of the proceeds of the sales with the debts of the testator or intestate, can safely represent, whether the estate is insolvent or not. It is attempted to sustain this view of the statute, by a reference to its language, which declares, that when the “estate, real and personal, shall be insolvent,” &c.; and which also orders, that “ the residue of the estate, real and personal, after paying funeral expenses,” &c. “shall be distributed,” &c.; the inference being thence drawn, that, inasmuch as it was clearly the intention and contemplation of the act, that the entire estate, both real and personal, should be sold and reduced to money, before the pro rata distribution required could take place, so also it was equally its intention and requisition, that it should be so reduced, before the estate could be known, and so represented, to be insolvent. The position is not a tenable one. It must be at once apparent, upon taking the whole statute together, that the representation of insolvency, upon which all proceedings against the estate were to cease, must, or at least, may take place before a sale. The statute is express, that if it appear to the Orphans’ Court that the estate is insolvent, it shall proceed, after ordering a sale of the lands, &c., to appoint commissioners to effect distribution. It is clear, then, that the insolvency of the real and personal estate, spoken of in the first part of the section, is not an insolvency, ascertained beyond question, by a direct comparison of the cash proceeds of the real and personal estate, reduced to money; because, when this insolvency has been made to appear to the Orphans’ Court, they are directed to order a sale of the realty, which, upon the construction contended for, must already have been effected, and the proceeds reduced into the possession of the executor or administrator. Such a construction as that contended for, is not only repugnant to the tenor and words of the statute, but would destroy and render of no effect all its provisions. Long before the estate, under the slow process of administrator’s and executor’s sales, could be reduced to money, judgment and executions thereon against the administrator or executor, which there [609]*609would have been no power to stay or resist, would have swept away the persona] estate, and perhaps have rendered an estate wholly insolvent, that might, under the more guarded and restricted mode, provided by a proper construction of the act, have yielded a large dividend. I cannot sanction a construction so subversive of the very object of the law. The power of the Probate Court, in regard to all matters regulating insolvent estates, is necessarily one involving great discretion in the probate judge. If that discretion be exercised improvidently or injuriously, and it'be made to appear so in the record, there is a tribunal with ample power to correct it. I cannot doubt, that where, from a fair estimate of the value of the entire estate of the deceased, the administrator or executor is satisfied that it is (both real and personal) “ insufficient to pay all just debts which the deceased owed,” that, acting under the solemn responsibilities of an oath, faithfully to discharge his duties to the estate, he is bound to represent the condition of the estate to the Probate Court, for its action. Upon that representation, the court must act, and if satisfied that the entire estate is insolvent, must proceed to order sales of the realty; but it is not necessary to wait for that order of the Court, before the representative of the deceased can check any attempts, on the part of any creditor, to force out of the estate an undue portion, to be applied to his debt. For the statute is equally explicit, that, upon the representation of insolvency, no action or suit shall be commenced or sustained against him. Such a representation, in full compliance with the words and spirit of the act, has been made in this case; is the defendant commencing or sustaining an action or suit against him ?
2. This brings me to the second position, that I shall notice, taken by the defendant. That is, that a judgment rendered before the representation of insolvency, is, not within the words or purview of the act, and is therefore not embraced by it. I think this position equally untenable with the other. I can discover no reason, nor is any suggested, why there should be a distinction drawn between judgments before and after the representation. They are both equally destructive to the object of the law, viz. a general and equal distribution among all creditors of the deceased, in proportion to their respective claims, of all the property of the deceased ; and [610]*610this object is no Jess frustrated Ify a sale of a portion of the property under a prior, than it would be by a sale under a subsequent, judgment. Independent, however, of these considerations, I think that the statute does in terms, as well as spirit, embrace judgments before the representation of insolvency. Its language is:— “ No action or suit shall be commenced or sustained against him after the estate of the testator or intestate be represented insolvent.” What is meant by, “ shall be sustained?” To what does it refer, if not to suits then pending, either in judgment, or not yet reduced to that condition ? And surely it cannot be said, that it will not be sustaining an action or suit against the administrators in this case, if an execution upon a judgment is permitted to be levied upon the negroes, and they sold, to the utter destruction of the estate. It is clear, then, to my mind, that this portion of the statute applies to and embraces a case like the one before me.
3. It is charged in the answer, and relied upon in the argument, somewhat, that the representation of insolvency was false and fraudulent. This may be so; and, if so, it would be very good ground for proceedings in the Probate Court, to have the representation examined and set aside. But this Court is not authorized to inquire into the truth or falsity of the charge. The whole subject is committed to the sole jurisdiction of the Probate Court, which is able to regulate and adjust it. This Court cannot revise, in this mode, their proceedings. Under this same head, may be considered the charge, indirectly relied upon in argument, but forming great ground of complaint in the answer, that the administrators are improperly managing the estate, and using its income and proceeds for their individual ends. If this charge were true, the remedy is full and simple, iñ a different tribunal. The same court that appointed the administrators, can, for any maladministration or misuse of the estate, remove them, and appoint others, and more trust-worthy persons. This Court has no control over the matter. The same remark applies to the allegation of the insolvency of the securities upon the administration-bond of the complainants.
Upon the whole, I am satisfied that the injunction should be retained.