| Mo. | Mar 15, 1867
delivered the opinion of the court.
John J. Anderson & Co. recovered judgment against John M. Wimer for the sum of $3,601.34, on the 24th of May, 1860, which judgment, subsequent to its rendition, was assigned to plaintiff’s intestate; Wimer died on the 13th day of January, 1863, and William J. Romyn was appointed administrator of his estate March 24, 1863, and duly qualified and. gave notice of the grant of letters of administration to him within thirty days as required by statute. The appellant’s judgment was not exhibited to the Probate Court till the second year of the administration, and was then placed in the sixth class of demands. Several judgments were rendered against Wimer after appellant’s judgment; but they were all presented to the Probate Court for allowance within the first year of the administration, and placed in the fourth class of demands. The judgments were all liens on real estate, and Wimer died insolvent. The respondent, as administrator, duly filed his petition asking for an order to sell the real estate belonging to Wimer, which was granted, and the sale was made ; the property, however, did not bring an amount sufficient to pay off the judgment debts. The appellant then moved the Probate Court to order the administrator to pay off the judgment demand of her intestate, in preference to the subsequent judgment creditors, regardless of the dtassifications that had been made; this was sustained by the court, and the order made. The respondent appealed from this order to the Circuit Court, where the judgment of the Probate Coui't was reversed, and the case is now brought here by appeal.
The controversy here wholly grows out of the conflicting views entertained as to the true construction of the first section of article 4 of the Administration Act, R. C. 1855, p. 151. That section declares that “ all demands against the estate of any deceased person shall be divided into the following classes: First — Funeral expenses. Second — Expenses of the last sickness, wages of servants, and demands for medicine and medical attendance dux-ing the last sickness of
It is now insisted that because the judgment of the appellant’s intestate was not allowed till the second year, and then classified in the sixth class of demands, that all priority was lost, and that it is entitled to none of the distributive share in the assets till the payment of the demands applicable to that class. At first glance there is a seeming incongruity in the section; but, upon a careful inspection, and taking all parts together, the intent, meaning and scope appear sufficiently clear. In general language, it provides that all demands included in the first, second, third and fourth classes, which are not legally exhibited within one year after the granting of the first letters, shall be classed as other demands according to the time at which they were exhibited. The fourth subdivision provides that judgments rendered against
The intention was to preserve to the judgment creditor the fruits of his lien, which he was precluded from following up and making effective by the death of the debtor. That this is the manifest intention of the statute is evident. All judgments rendered against the deceased in his lifetime are to be put in the fourth class of demands; but express provision is made in case they are liens, and the estate is insolvent, how they shall be paid, without reference to classification. The clause in the seventh subdivision taking away the precedence given to certain classes of demands unless they are duly exhibited in the first year, cannot be made to apply to judgments which were liens, where the estate is insolvent, without entirely ignoring the effect to be given to the special provision providing for their payment without reference to their classification.
The result is, the judgment of the Circuit Court must be reversed, and the judgment of the Probate Court affirmed.