The original action was to recover the amount of town and school district taxes assessed in the town of Waldoboro in 1861 to the defendant’s intestate. No question is raised as to the legality of the assessments, or to the competency of the defendant in review to sue for them.
The only defence under the report is that the estate was duly rendered insolvent, and the claim was not presented to, or proved before the commissioners. This at the commencement of the action was, and still is, a preferred claim. B. S., c. 66, § 1, class 4. It was therefore unnecessary that it should be laid before the commissioners. B. S., c. 66, § 17; Flitner v. Hanley, 19 Maine, 261.
As a further defence it is claimed in argument that all the estate was required for the payment of prior preferred debts, and to show this, a copy of an account settled in the probate court by the administrator is offered in evidence. But this account, though showing a balance in favor of the" administrator, is a first and not a final one, and no allusion is made to it in the report of the case. It is therefore inadmissible, even if it would show what is claimed for it.
As the report shows no defence to the original action, as therein provided, judgment must be entered for the defendant in review. Judgment for the defendant in review.
Appleton, C. J., Walton, Dickerson, Barrows and Libbey, JJ., concurred.