¶1From the motion it appears, that in November, 1848, Sylvester Taylor became indebted to the petitioner by the note in dispute. It bears date the 16th day of November, 1848, is for $150 payable in January, 1852, and was guarantied by Edwin Botsford who is now dead, and Oliver S. Botsford one of the respondents is his administrator. Edwin Botsford died in December, 1848, *83his estate was represented insolvent, commissioners duly-appointed, the time for exhibiting claims limited to six months, of which notice was given as the court directed, and commissioners made report of the claims allowed, which have been paid, and the administration account has been settled; but this note was not presented or allowed, and has never been paid, either by the maker or guarantor.
¶2After the debts allowed by the commissioners were paid, it appeared that the estate was not in fact insolvent, but that valuable real estate remained, and still remains in the hands of said Oliver and a brother, the only heirs of said Edwin. In 1851, said Taylor, the maker of the note, died in California, entirely insolvent.
¶3The important questions in the case are these; does the non-presentation of this note and guaranty to the commissioners on Edward Botsford’s estate within the time limited, cut off the petitioner’s right to recover, the estate turning out to be solvent? and if it does not, what is the proper remedy to be pursued in order to obtain payment ?
¶4As to the non-presentation, we think that is no objection, since the claim at that time was wholly contingent, and the estate proves to be solvent. The reasons for this are so fully assigned in the case of Bacon v. Thorp, though tried subsequently to this case, on the present circuit in Middlesex,
¶5In this opinion the other judges concurred.
¶6Judgment affirmed.
¶7 Reported in the present volume—post.