*522On Petition for a Rehearing.
Ross, J.The appellant petitions for a rehearing, insisting that the construction placed upon section 2385, supra, is erroneous.
The material question presented on this appeal is whether or not, under the provisions of said section, the administrator of an estate should be mulcted in damages, if he pays the claims in the inverse order of that designated by the statute, when neither a creditor nor the estate he is administering is injured thereby. It was insisted, in the briefs of counsel for the appellants, on the original hearing, and is reiterated by them now, that the question of injury does not properly enter into the consideration of the question presented; that the statute is mandatory, requiring an administrator to pay the claims against the estate in the order designated by the statute, and if he fails to pay them in that order, but pays those of the third class, and does not pay those of the first or second classes, even though he may have the means to pay the claims of those classes also, and even though neither the estate nor the creditors of the first and second classes are injured by his paying the claims of the third class first, still there is a breach of the bond. We are still unable to concur in this construction of the statute. Taking and construing together the several provisions of the statute specifying the order in which claims shall stand for payment, and making it the duty of the administrator to pay the claims in the order designated by the statute; it is evident that the Legislature so provided in order that if the estate was not able; for any reason, to pay all of the claims, those having a preference should be paid, and if any were not to be paid, it must be those in the class or classes inferior to others. For that rea*523son the statute imposes upon the administrator the duty of paying the claims in the order designated by section 2378, supra, and if he pays them in any other order, and either the estate or a creditor is injured thereby, he is liable on his bond, as provided by section 2385, supra.
It is true, that the statute does provide the order in which claims shall be paid, and neither the administrator nor the court can change that order to the injury either of the estate or the creditors or legatees, but the statute does not contemplate that in every case shall all and every claim belonging to each preceding class, be paid before any claim belonging to the succeeding class shall be paid. Of course, if the administrator does pay any claim out of its order, he takes the risk of having to account to the estate in the event such payment out of the regular order results in injury to the estate or any creditor.
Counsel for appellant call attention to the case of Eiceman v. State, ex rel., 75 Ind. 46, insisting that the holding in that case is decisive of the question presented in the case in hand. We think counsel are in error. In that case the court held that subdivision three of section 2521, R. S. 1881 (section 2685, Burns’ Rev. 1894), which requires a guardian to make a report of the condition of his ward’s estate once every two years, and for a failure Shall be liable on his bond for ten per cent, damages on the whole amount of the estate in his hands, was liable on his bond, because he failed to make his report as the statute required. That statute is for the purpose of compelling the guardian to be diligent, so that the court may be advised of the condition of such estate, and of the manner in which it is being managed. There is no similarity between that provision of the statute and section 2385, supra, neither is the object to be obtained by the two provisions at all alike.
Filed June 17, 1896.We are still satisfied with the original opinion, for which reason the petition for a rehearing is overruled.