The opinion of the Court was drawn up by
Shepley J.— The plaintiff performed labor upon houses built by the testator, upon lands supposed to have been conveyed by him in mortgage. It is admitted that he had an attachable interest therein, at the time of his decease. The statute provides, that persons performing certain labor, “ shall have a lien to secure payment of the same, upon such house or building, and the lot of land, on which the same stands, and on the right of redeeming the same, when under mortgage ; and such lien shall continue in force for the space of ninety days from the time, when the payment becomes due.” Ch. 125, section 37.
Provision is made by the following section, for the enforcement of such lien, by an attachment of the estate within the ninety days. Soon after the labor was performed, the testator deceased, the defendant having assumed the trust of executor, represented the estate to be insolvent, and commissioners of insolvency were appointed. It is admitted, that the estate was in fact insolvent.
The plaintiff caused the suit to be commenced against the executor within ninety days, after the last charge for labor performed was made, to preserve and enforce the alleged lien.
*521No executor or administrator can be required to defend a suit, commenced against him within twelve months after he has assumed the trust, unless the same be brought for the recovery of a demand, not affected by the insolvency of the estate, or by way of appeal from a decision of the commissioners of insolvency. Ch. 120, <§> 21.
Provision is made by statute c. 109, for the disposition of the whole assets of an insolvent estate. No part of it is appropriated to the payment of claims secured by lien, while provision is made in the tenth section, for the adjustment of the rights of those, who hold collateral security by mortgage or pledge of real estate or personal property, including notes or other evidences of debt. No provision is made by statute authorizing the recovery of a judgment against an estate, actually insolvent, which is not to be added to the list of claims, returned by the commissioners, unless the judgment be rendered upon a demand entitled to a preference. If this action could be maintained, no judgment could be rendered against the goods and effects of the testator, in the hands of the defendant. It could be rendered only against the right or interest which the testator had, when the lien attached, in a certain estate, which must be described in the judgment. It would be a judgment in rent rendered by a court of common law, not based upon any process against the property.
And there is usually no definite description of the bounds of such estates, by the act, so that the Court could describe, in a judgment, the estate to be sold or levied upon, to satisfy the judgment.
If the plaintiff could be allowed to enforce his alleged lien by the recovery of such a judgment, and execution issued thereon, authorizing the debt to be collected only out of the estate subject to the lien, the effect would be to take so much from the assets, and prevent its application to the payment of the expenses of the funeral, or to the allowance authorized to be made to the widow and children, or to the expenses of the last sickness, or to any of the other preferred claims.
*522Among the considerations suited to lead to the conclusion, that it was not the intention of the Legislature to have such a lien enforced, against an insolvent estate, are the following.
The omission to provide for the maintenance of an action, and for the entry of a special judgment to enforce it. The omission to notice and to provide for it, in the section regulating the rights of mortgagees and pledgees; the appropriation of .the whole estate to other purposes than the payment' of such ■claims ; the improbability that the Legislature would designedly ■have given to such claims a preference, over those for funeral .expenses, for expenses of the last sickness, and over all other .preferred claims.
It must, at least, be regarded as doubtful, whether such was the intention of the Legislature; and if such an intention ■.could be discerned, no provision has been made to carry that .intention into effect. In such case the Court would not be authorized to supply the enactments necessary, to enable one to maintain an action, and to recover a judgment only against the ■.estate, subject to the lien.
It was the intention as disclosed by the enactments of the .-Legislature, that all claims against an insolvent estate, except .claims entitled to a preference, should be presented to, and adjusted by the commissioners of insolvency, when no suit had been commenced upon them during the life of the debtor, and when the estate had been represented to be insolvent, within ■one year after administration had been granted.
This suit does not appear to be one authorized to be prose.cuted by the statute, c. 109, <§> 28, as founded on a demand •.disputed, and having been commenced within one year, and .not upon a claim entitled to a preference, it cannot be maintained. Plaintiff nonsuit.