As the tendency of the pleadings in this case, is to overturn the whole course of administration, as established by “statute in this state, and restore the system of the common law, the plea cannot be supported, and the plaintiff must have judgment. In this state, the defence o $ plene administravit, as it is attempted here, and when the effect is to defeat a creditor of all satisfaction, unless he will take real estate at appraisal, which he cannot be compelled to do, is not admissible. The administrator must either represent the estate insolvent, (when the creditors are to be paid rateably, in proportion to the amount of assets) or be taken to have sufficient estate to satisfy all the creditors in money, as the intestates ifliving, must have done. This supposed sufficiency of assets, has relation to the time when the administrator fixes his plan of administration, and declines representing the estate insolvent, and would not prevent him from successfully defending against a suggestion of waste, and a scire facias thereupon, if be could show a loss or destruction of the assets without his fault; but he cannot plead plene administravit, which supposes the assets all applied upon other claims, to the exclusion of the present creditor.
Orsamus C. Merrill, David Robinson, jr. and Uel M. Robinson, for the plaintiff. Hiland Hall and Samuel H. Blackmer, for the defendant. Prentiss J.There is a vast difference between the system of 1 . . , , > 1 * settling estates here and m England.
Our statute makes it the duty of the administrator to inventory. and to sell the real estate, when necessary, for the payment 0f debts. No such plea as plena adminislravit (without showing a dividend) is good here, except in one particular case; and that is, where the privileged debts have absorbed the whole estate.
Judgment, that the defendant’s plea in bar is insufficient.
Skinner, Ch. J. did not sit in this cause.