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POST v. MACKALL. 503
to one of them; be who has it in his power to resort to the two
funds may be compelled to obtain satisfaction, as far as he can,
account passed by the Orphans Court of Talbot county, is applied to the payment of
the commissions and expenses and preference claims, as stated in said Orphans
Court account; and the net balance proportionally distributed among all the paid
and unpaid creditors of the deceased, who were not entitled to be preferred in the
disposition thereof, whereby it appears, that these unpreferred creditors should have
received as of the day of passing said Orphans Court accounts, $0. 61106 per centum
of the amount of their claims. That in account B. the proceeds of the sale of the
real estate are applied to the payment of the trustee's allowance for commission and
expenses; and the costs of suit of the complainant and appellant in the first appeal,
and of the appellees in the second appeal; for taxes due upon the estate sold; then
to the satisfaction of the mortgage debt due to the defendant The Farmers' Bank,
and the balance left unappropriated, because of its inconsiderable amount, and the
many difficulties now attending a distribution thereof among the other creditors of
the deceased.
The auditor further says, that claims No. 3, 4, 5 and 8, are not proved as the act
of Assembly requires; that the original causes of action are wanting to support
claims No. 3, 4 and 5; that all the devisees of the deceased plead the statute of
limitations to claims No. 2 and 7; that James Tilton and Clara Tilton, and the heirs
of Harriet Bennett plead this statute to claims No. 3 and 8; that Reynolds and wife
plead this statute to claims No. 2, 3, 4, 5, 7, 8, 9 and 10. The auditor submits to
which of these claims the statute applies; and that these claims, viz: No. 2, 3, 4, 5,
7, 8, 9 and 10, in the mean time be suspended. He further reports, that claim No,
10 appears to be a judgment recovered by the claimant of No. 7, against James
Tilton, as the surety for the same debt as No. 7; and the auditor submits how far
this judgment supports claim No. 7, as against any interest said Tilton may have in
this estate. That the tax bills are not proved; nor have they been sanctioned by
the trustee; it is, therefore, submitted, that they be suspended. He also reports,
that many of the devisees, as well as the defendant, The Farmers' Bank, require,
that the claims should be fully proved; and that claims No. 2, 3, 4, 5, 7, 8 and 9,
are not fully proved.
The auditor further reports, that he has assigned so much of the balance of the
proceeds of sale to the satisfaction of the mortgage debt of the defendant, the Far-
mers' Bank; because the whole sales were of the mortgaged premises. But, as the
Court of Appeals, in their opinion delivered in this cause, at the December term,
1838, a copy of which is filed, say, that there may exist a state of things in which
this mortgage claim may be reduced, certain statements are submitted in illustration
of this point. That part of the opinion is as follows: 'If it should turn out, that the
residue of that part of Marengo, devised to Fayette Gibson, and not by him con-
veyed to Edward Lloyd or John Blake, united with the other parts of Marengo, to
which Fayette Gibson was entitled, after paying their just contribution towards the
mortgage debt, and all other debts of the deceased, should prove inadequate to the
payment of that portion of the mortgage which the part of Marengo devised to
Fayette Gibson was bound to contribute; then with reference to the other devisees,
owners of Marengo, the mortgage debt of the Bank must be deemed satisfied and
paid to the extent of such inadequacy. ' Statement No. 1, shews the value of Jacob
Gibson's real estate at the time of his death. Statement No. 2, shews the value of
the same, as of the time of taking the testimony in relation thereto. Statement No.
3 and 5, by which it appears, in these views of the proof, there will be such & defi-
ciency is is intimated in the opinion of the Court of Appeals. And statement No.
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