Hutchinson, C. J.
Pronounced thev opinion of the Court. One part of this case is put at- rést, by the decis*361ion of this Court in a former suit upon this bond. The on-3y question, litigated in that suit two years ago, was, whether the ten payments of $100 each, indorsed as they fell due from year to year, and amounting in the whole to the penalty of the bond, was a bar to any suit for after payment, falling due in the life time of the grantee, the present plaintiff? This Court decided, that those payments, were not a bar to the suit then pending. As that opinion was not pronounced, till the year following, and the obli-gor died in the mean time, and the claim was laid before the Commissioners pursuant to the statute in such case provided, the decision of this Court did not entitle the plaintiff to execution. That the decision, however, was made upon so full consideration, we are disposed to observe it as good authority on the same question now before us. Neither has any thing new been presented, which tends to create any doubt of the correctness of that decision. This necessarily leads to the affirmance of the judgement of the County Court, so far as relates to the sum of .$‘272,94, duo at the decease of the obligor.
The next question regards the valuing the annuity. The County Court admitted the evidence, though objected to, and allowed $184,82, as the value of the annuity, that remained after the decease of the obligor. While investigating this question, we must bear in mind, that this claim is urged against the estate of the deceased obligor, whose estate was represented insolvent; and that this claim was laid before the commissioners of claims upon his estate, and comes by appeal from their decision to the County Court, and by exceptions from the County Court to this Court, as by a writ of error. With regard to the law upon this point, (and there is now no dispute about facts) we must decide just as the commissioners ought to have decided. Just as we should decide, were we sitting as commissioners upon the estate of the obligor. This Court has, several times, decided, that commissioners must always decide the claims, laid before them, as they existed on the day of the decease of the person, on whose estate they act. ' No after circumstance should be brought in to affect their decision. AH debts, existing at the time of the decease, whether become payable or not, must be al*362lowed. What is not then a debt, mast not be allowed by reason of any prospect of its becoming so at a future day. A covenant of warranty in a deed is not considered a debt? till the covenant is broken. If the law were otherwise, it would do great injustice to- the creditors, whose debts ought to be paid as far as the property extends. It would serve to lock up the property from such creditors, to await the breach of some covenant or covenants, that may never be broken; and wholly prevent a final settlement of the estate. Persons, who hold such covenants, must bear the risk of finding, after they arc broken, and a cause of action exists, heirs, who have received assets from their ancestor.,, the covenantor. They can have no other remedy.
A bond, conditioned to pay monies or perform services-at future periods, that are certain to- arrive, is a debt ire presentí, to the amount of what is required by the condition to be paid or performed. In all such cases, the sum due* or that will fall due, in equity, is considered the debt, if it do not exceed the penalty. After the modern statutary provisions for courts of law to chancer bonds, and give judgement for only the sum due in equity, upon the matters, named in the condition, the penalty is considered as merely a security, and mean of collecting, the sum due by the condition.
Now, transferring ourselves back to the day of the decease of the obligor, and how do we find this claim for any thing not already due? Is it certain, that it ever will become due ? It depends wholly upon the continued life of the obligee; and upon her living, toó, to the end of a year, when a payment would become due, according- to some authorities. At the decease of the obligor, this claim had no existence. The plaintiff might live so as to have a-debt accrue; she might die the next day, in- which case it never would accrue.
Annuities have not been much in vogue in this state.— And our statute, for the distribution of the estates of persons deceased, contains no provision that can vary this from other contingent cases. The statute provides for two classes of cases. One class is composed of those claims, that can be fairly called existing debts at the lime pf the decease, whether they be then due and payable, or *363will certainly become so at some future day. All these •s.tand good against the estate, and come in for payment, •or a dividend. The other class is composed of such as are not then existing debts, but may or may not, become existing debts at some future day, and upon the happening of some uncertain event. These, if they ever become debts, must not prevent settling the estate of the deceased, while that event is happening; but must after-wards find assets in the hands of some heir; or remain un.satisfied. The plaintiff must share with the other creditors in collecting the sum due at the decease of the obligor. Any thing further cannot be allowed her in this action.— The judgement of the County Court is reversed with regard to the sum of ‡ 184,82, which had not accrued at the decease of the obligor. And is affirmed with regard to the remaining sum. The Clerk must certify this, decision to the Court of Probate.
Southworth, for plaintiff.
BlacJcmer, for defendant.