The question presented by the record is, whether the creditors of Larkins’ estate, Middleton and Mock, who had presented their claims to Maull, the administrator, within eighteen months, but who had not filed them with the clerk of the Orphans’ Court within six months after the estate had been declared insolvent, should have been allowed upon the final settlement of the estate to show that the estate was then solvent, by proving that the administrator had failed to charge himself with the crop of 1843, and with eight slaves specially *481named, and a wagon and harness, which he failed lo: relurn to said Orphans’ Court as assets.
In the opinion of the court below, the failure of these contesting creditors to file their claims within six months after the estate was declared insolvent, was a complete bar, notwithstanding the estate at the time of final settlement may have been perfectly solvent. We readily concede, that all the creditors who- fail to exhibit their claims within six months after the estate is declared insolvent must be excluded, and their claims barred, if the estate continues insolvent up to the final settlement. That is, such claims are barred- as against the assets of an insolvent estate. Such is the decision in Hollinger v. Holley, in 8 Ala. Rep. 454, as I understand it. But that the decree of insolvency, predicated as it is upon the report of the administrator — which report in the nature of things must in many cases be incorrect — shall be final and conclusive upon the court and all the creditors, notwithstanding the estate may afterwards turn out to be perfectly solvent, is opposed, in my opinion, not only to our previous decisions, but to the spirit of our legislation and to all the analogies of the law.
By the act of 1843, (Dig. 192, § 2,) the administrator, &c., when the estate is in his opinion insolvent, is required to file an allegation of the fact, praying that it may be so declared, which allegation is to be accompanied by three schedules thereto attached, viz: one is to contain the full statement of all the goods and chattels, ehoses in action, and personal estate of the deceased, with the estimated value thereof; the second, the real estate with its location, the nature of its tenure,'and its estimated value; and the third, a statement of all the claims against the estate, their nature and amount, and the residence of the creditors. Upon the filing of such allegation, a day is set apart by the clerk or judge for declaring the estate insolvent ; notice is to be given by publication, See-., and if no objection is made by the creditors on the day, the decree passes as a matter of course, but if objection is made, an issue is formed and the question of solvency vel non tried by a jury.— The act does not provide for the litigation between the creditors as to the justness of their respective demands upon this issue, but contemplates that their claims shall be aftenva/rds filed within six months; and the mode of bringing on the coa-*482test bel ween them is pointed out, which may be done by the administrator or any creditor in his name filing objections to any claim within nine months from the decree of insolvency. I cite these statutes, stating them substantially, to show that the decree of insolvency was evidently designed by the Legislature as interlocutory merely. The administrator in his schedule of effects may return a number of desperate notes due the estate — may mistake the value of the real and personal property; by the collection of these notes, supposed to be desperate, or the appreciation in the value of the assets, the estate may, after the decree of insolvency, be rendered perfectly solvent. Besides, the claims presented in the six months, or a large portion of them, may turn out to be wholly unjust, and thus the estate, though reported insolvent and so declared upon the presumption of their justness, is and always has been able to pay all its debts. In such case, where the estate is able to pay all the debts, as well those presented in eighteen months as those presented in six months after the decree of insolvency, the effect of the final settlement is to set aside the interlocutory decree of insolvency, and the creditors are paid in full, instead of receiving a pro rata distribution; and all the creditors who have presented Iheir claims within eighteen months have the right to be paid, for the reason that the estate is settled as a solvent, not an insolvent estate. Such was the decision by this court in Phelan v. Phelan, 13 Ala. Rep. 679, where it was held that although an estate was declared insolvent, yet if on settlement it proves not to be so, creditors who have not filed their claims within the six months are nevertheless entitled to payment if they had presented such claims to the administrator within eighteen months after grant of administration. Now it appears to me to be an anomaly in judicial proceedings, to hold that if the estate chance by the adminis-istrator’s own showing, or by a controversy raised at the instance of the creditors who have proved their claims within six months, to turn out solvent, the eighteen months creditors may come in, and yet that they shall be denied the privilege of showing the facts upon which the payment of their claims depends, viz: that assets have come to the administrator’s hands adequate to the payment of all the debts. The fact that the six months creditors, if I may thus designate them, may *483show tbe estate to be solvent on final settlement by charging the administrator with assets not returned, is sufficient to show that the decree of insolvency is not conclusive. (See Clay’s Dig. 226, § 27.) In Edwards v. Gibbs, 11 Ala. Rep. 292, it was held, that the effect of a decree of insolvency is to transfer to the Orphans’ Court the exclusive jurisdiction of all claims against the estate, and in that court, on final settlement, it may be shown that the administrator has withheld or wasted the assets. So that according to this decision, if the creditors have no remedy in the Orphans’ Court, they cannot sue upon the bond, or otherwise hold the administrator liable for his failure to return to the court a proper account of the assets which ■came to his hands.
To hold that these creditors are barred for failing to present their claims in six months after the decree of insolvency, when the estate is on final settlement solvent, is to dispense with the statute of 1815, usually denominated the statute of non-claim, which is the only statute prescribing in terms a bar for failing to present claims, and which provides that unless they are presented within eighteen months from the grant of administra* tion, they shall be barred. — Clay’s Dig. 195, § 17. I am then of opinion that Middleton and Mock, who had presented their claims within eighteen months, should have been allowed to prove on the final settlement that the estate was solvent, and that the court erred in refusing to permit them to show that the admiaistrator had received or should have been charged with assets which had not been returned, and for which he had in no wise accounted. A different conclusion would cut off many creditors, who, charged only with constructive notice of the allegation of insolvency, and without any notice in fact, have failed to contest with the administrator the truth of his allegations of the insolvency of the estate. It would, in such cases, be holding out inducements to administrators to report estates insolvent, on a partial ascertainment of their true condition, with the hope that should the effects turn out sufficient to pay all the debts, they should retain the surplus after paying the creditors who have come in and filed their claims in six months under the act of 1843; for if the decree of insolvency be final and conclusive, and may not be gainsaid on final settlement, then as the distributees cannot share with creditors in *484an insolvent’s estate, the administrator would be entitled to the surplus, which could never have been contemplated by the Legislature. It is unnecessary for us to determine whether the creditors, who have presented their claims in eighteen months, can come in if the estate is more than sufficient to pay the six months creditors, but not adequate to pay all the demands presented against it. All that we decide now is, that if the estate is solvent, those creditors who have presented their claims in eighteen months are entitled to payment on final settlement, and to show that it is solvent by charging the administrator upon such settlement with all the assets which have come to his hands, or which should by the exercise of proper diligence have been reduced to his possession. In this opinion the Chief Justice coincides with me.
The decree of the Orphans’ Court is consequently reversed and the cause remanded.