majority">Soule, J.

The payment by Scammon to the mother of the plaintiff’s intestate was made to one who had no authority to receive it, and therefore did not discharge Scammon’s debt to the estate, unless the payment was ratified by the administrator. But if he ratified that payment and the delivery of the money to Towle, the "brother of the intestate, and if Towle paid it to the defendants as money of the estate of the intestate, and the administrator ratified that payment under the impression that the estate was solvent, still this action cannot be maintained An administrator who pays a debt of his intestate within a year *387after Ms appointment, under the honest belief that the estate is solvent, has a right of action against the creditor thus paid if the estate proves to be insolvent. This right of action does not accrue when the estate is represented insolvent, nor when commissioners are appointed; but when the decree of distribution is made. Until then it does not appear whether the estate is in fact insolvent or not. If it proves to be solvent, the administrator has no right to recover what he has paid the creditor. If it proves to be insolvent, he may recover the difference between the amount paid and the amount of the dividend ordered to be paid to the creditor. This can be ascertained only by proof of the debt before the commissioner. Until the decree of distribution, therefore, it cannot be judicially known that the administrator has a cause of action; nor, if he has, what amount he is entitled to recover as damages. Walker v. Hill, 17 Mass. 380. Heard v. Drake, 4 Gray, 514. Walker v. Bradley, 3 Pick. 261. Bliss v. Lee, 17 Pick. 83. Smith v. Faulkner, 12 Gray, 251, 259. Richards v. Nightingale, 9 Allen, 149.

In the case at bar, it does not appear that the estate of the intestate is in fact insolvent. It has been so represented, but that fact does not give a right of action to the plaintiff. It does not appear that any debts have been proved before the commissioner, nor that any order of distribution has been made.

In this view of the case, it is unnecessary for us to consider the question whether the facts agreed would warrant a finding that Towle paid the defendants out of his own estate, in consequence of his previous promise, and not merely as representing the estate of the intestate, and paying its money, which had been forwarded to him for the purpose.

Judgment affirmed.

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