SAME CASE ON. A RE-HEARING.
Buchanan, J.After the judgment and appeal which form the subject of the case No. 4324 in this court, just decided by us, a rule was taken by Mrs. Fanny Gutter to show cause why the administratrix should not be ordered to pay *158oyer the amount allowed the said Mrs. Gutter by the judgment appealed from, without prejudice to her fwrther rights upon her sand appeal. After hearing, this rule was made absolute.
The judgment upon this rule, as it stands, is a peremptory and unqualified judgment against the administratrix of the estate and appellant herein, for a sum of nineteen hundred and seventy-eight dollars and thirty-three cents, that being the amount allowed Mrs. Gutter by the previous judgment from which she had appealed.
But the administratrix has brought to our notice that the judgment from which Mrs. Gutter had appealed, approved and homologated the account rendered by the administratrix, so far as not specifically amended; and that one of the particulars in which the account was not amended by the judgment, was the amount in the hands of the administratrix for distribution, say four thousand one hundred and eighty-onq dollars and thirty-eight cents.
Now, the judgment in question (that upon the oppositions to the account of administration) decreed, that the fund in hand, as aforesaid, should be distributed :
1st — To the payment of Clerk’s fees..................................
“ “ Sheriff’s fees.......................... $176 OS
“ “ privileged claims, according to the tableau, which amount to..................... 821 00
2d — Claim of Bmjne, assignee of Kolm, Dan-on & Go., amounting, in capital, to....................................$3718 86
And in interest to date of judgment, to considerably over......................................... 2000 00 5718 86
3d — Claim of Miller's Syndic, as the same figures on the tableau, say 1613 56
4th — Mrs. Fanny Gutter..................................... 1978 33
It is obvious, from this statement, that, under the judgment upon the account of administration, Mrs. Gutter could have nothing to receive from the fund in the hands of the administratrix, according to the account, which fund would have been entirely exhausted by the two first classes of preferred creditors. The judgment of the court upon the rule was therefore unfounded in any right conferred upon Mrs. Gutter by the previous judgment of the District Court, and injurious to the administratrix, by imposing upon her a liability beyond that judgment.
It is, therefore, adjudged and decreed, that the judgment heretofore rendered in this cause be set aside and annulled; and it is further decreed, that the judgment appealed from be reversed, and the rule taken by the appellee, Mrs. Fanny Gutter, on the appellant, Mrs. Regan, administratrix of William Regan's succession, on the 5th December, 1855, be dismissed, without prejudice to Mrs. Gutter's rights under her appeal; and that the appellee pay the costs of said rule in both courts.