(dissenting). — I understand Judge Smith in the foreoing opinion to announce the doctrine that a guardian of an insane person cannot be allowed to prefer any creditor of his ward; but in case the estate should prove insufficient to pay the debts in full then the guardian must pay pro rata; and failing in this, then the guardian can be held at'the suit of a neglected creditor for the proportion that would be coming to him on a pro rota distribution.
I must dissent from that position. The statute on insane persons relating to appointment, etc., of guardians by the probate court makes no such provisions (Revised Statutes, 1889, ch. 86), and I cannot understand why the courts should so declare. Unrestricted by statute, the right of an insolvent debtor to prefer one creditor over another — that is, to use his assets to satisfy one or more and altogether to deny others — is everywhere admitted. If then the preference here in dispute had been given by the ward in person (before adjudged insane or after his restoration) then there could, be no *363question of its legality, and the paid creditor or creditors could hold on to all they had received, even though the entire property of the debtor had been exhausted.
Now the guardian of an insane person, appointed under our statute, stands in the place, of the lunatic. He is placed in charge of the estate to manage and conduct its affairs subject of course to the orders of the probate court, but not to wind it up as in cases of administration of deceased persons. State to use v. Jones, 89 Mo. 470. There is a marked distinction between the duties of an executor or administrator and the guardian of one of unsound mind. In the former the object is to marshal the assets of the deceased — to close up finally his business and pay his debts, whilst in the latter the purpose is to hold and protect the business affairs of the insane person till restoration or death may come to his relief. In many cases the duty of the guardian is imperative to continue the business of the ward. This as already said is subject to the supervisory care of the probate court. Jones Case, supra. The statute law, too, has made a corresponding distinction between the manner of administering the two estates. In closiug up and settling the estate of a deceased person provision is made for the allowance and classification of demands and for their pro rata payment if the estate proves insufficient to a full satisfaction; on the other hand the statute prescribing the management of the affairs of an insane person makes no provision for the presentment, allowance or classification of claims against, it, but leaves this, with other matters concerning the interests of the lunatic, to the management of the guardian, who is subject to the superintending control of the court. If it was intended that the guardian should proceed to gather in the assets and pay the claims joro rata, it seems the like provisions that appear in the administration law would be found *364inserted in the statute for the administration of the estate of insane persons. At common law.the executor or administrator, it seems, might prefer one or more creditors over others of equal rank or degree (Woerner on Administration, sec. 376); and it is therefore only because of the statute that such is not still the rule. If then such was allowed in ordinary administrations on the estates of deceased persons, it ought very clearly to be permitted in the matter of conducting the affairs of an insane person’s estate.
Again, a creditor of the ward may bring suit, and have judgment with right of levy and satisfaction out of the property of the insane person. Revised Statutes, 1889, sec. 5544. This is quite contrary to the idea that the assets shall be distributed pro rata. For it may be that the judgment thus enforced by execution may absorb the entire property and this would result of course in a preference. And if a preference can thus indirectly be accomplished, why not directly, through and by means of the voluntary act of the guardian?
And again, under the statute as it existed prior to 1883, for the settling of insolvent partnership estates, the surviving partner was not required to pay claims pro rata, but was permitted to pay in full such as he saw fit. Crow v. Weidner, 36 Mo. 412; Collier v. Cairns, 6 Mo. App. 190. In order to so provide for payment pro rata, the statute has since been amended. Revised Statutes, 1889, sec. 64. If now the surviving partner, administering the co-partnership estate, was thus, in the absence of a prohibiting statute, permitted to give preferences, on what theory can it be denied a guardian in charge of the affairs of one insane? In my opinion then, since the statute has failed to declare against preferences in the conduct or settlement of the affairs of an insane person, the guardian is not bound to pay pro rata, but may prefer one or more claims over others.