The defence arising under the statute of limitations must prevail in the present case. Upon the representation of the apparent insolvency of the estate by the administratrix, the appointment of commissioners, their proper return of the list of claims allowed by them being duly accepted by the judge of probate, the rendition of the administratrix’s account, and a decree by the judge of probate ordering the dividend to be paid to the creditors, the actual insolvency of the estate was legally established. Thereupon the right of the plaintiff to recover of the defendant the difference between the sum paid by her to him, and that which he was entitled to receive as his proper dividend, became perfect, and might have been legally enforced. This was as early as November 11th 1854; but the present action was not instituted until November 21st 1862. It is no sufficient answer to say that there were certain outstanding, unavailable and doubtful claims due to the estate, which might, if they should thereafter be received, slightly increase the sum to be paid to the. creditors. The decree of actual insolvency and the dividend declared upon the amount of all present available assets, were a sufficient ground for the administratrix to r& claim any excess in the hands of the defendant, leaving him to *151participate in common with other creditors in any future dividend, if such should ever be made.

The result must be that

Judgment be entered, for the defendant.