Shreve v. Wampole. use; that he was a non-resident and insolvent, and asked that he might be removed. On the hearing of this petition, the court ordered the executor to file another account showing the securities in which he had invested the estate, and that he should also give additional bonds in $6,000, and that the further hearing of the matter be postponed to a designated day. He gave the bonds so required, and on the designated day, after evidence and hearing, was removed from office.-Held, that the order requiring him to give the additional security, and his compliance therewith, did not oust the court of its jurisdiction to remove him. Appeal from order of Burlington orphans court. Mr. M. Hutchinson, for appellant. Mr. W. P. McMichael, Jr., and Mr. F. Voorhees, for respondent. THE ORDINARY. The appellant and William C. Busby, now deceased, were executors of the will of Elizabeth Wampole, deceased. Busby died on or about January 1st, 1883. By a citation issued out of the Burlington orphans court April 7th, 1883, the appellant was called upon to render an account of the estate, or show cause, on the 23d of that month, why he had not done so. By a like citation, Busby's administrator was called upon to account for his intestate's administration of the estate. On that day the appellant filed his account. The respondent, who is the residuary legatee under the will, excepted to the account. Leave was given to the appellant to amend his account. He filed his amended account, and the respondent excepted to it. The respondent then, in May, 1883, filed his petition, charging that the appellant had abused the confidence reposed in him as executor, and alleging, among other things, that the appellant had converted into cash every interest-bearing security of the estate (among them were a government bond and a real estate mortgage), except a note of his own for $600, and applied the money, as the respondent feared, to his own use; that the appellant was a resident of California and only came to this state on occasional visits, and that he was, as the respondent (after full inquiry on Shreve v. Wampole. the subject) believed, insolvent. The petition prayed for his removal from office and the appointment of some fit person in his place. The appellant having been duly cited upon the petition, and the matter having been brought before the court, the court, by an order of July 17th, 1883, ordered that the appellant file an additional account on or before the 10th of August then next, showing in what securities he had invested the estate then in his hands, and that he give" further and additional security," in ten days from that date, by bond with two sureties named in the order, in the sum of $6,000, conditioned for the faithful discharge of his duties as executor, and that the further hearing of the matter be laid over until the 20th of September then next. On the 8th of October following, in the September term, the court, after a further hearing of the matter, by its order of that date, revoked his letters testamentary and removed him from office. From that order he appealed to this court. The appellant insists that the court having, under the petition, required him to give bond for the faithful discharge of his duties, and he having, as it is said, given such bond, the court could not lawfully remove him under that petition. The evidence taken on the day of the date of the order appealed from, and on which it is based, abundantly warrants the order. The objection taken on the hearing of the appeal to the order, however, was not that the evidence is not sufficient to support it, but that the court had not jurisdiction to make it. The objection cannot be sustained. The petition prayed for the removal of the appellant. The court cited him to appear and answer it. On the returnday of the citation, it ordered that he give an account of the investments and give security, and that the further hearing of the matter be laid over to a designated future day. The requirement that the appellant give security was made in the exercise of the lawful authority of the court, and no complaint is made of it. There is no appeal from that order. The order was, of course, not a final disposition of the matter, for it required an account of the investments and postponed further action on the petition until the 17th of September. At the term of September, in pursuance of that continuance, the court resumed the Metropolitan Bank v. Morehead. consideration of the matter, and it having been proved, as the order declares, to its satisfaction, that the appellant had misapplied portions of the estate committed to his custody, and had abused the trust and confidence reposed in him as executor, it revoked his letters and removed him from office. The question, as presented on the hearing of the appeal, is one of jurisdiction merely. The court, undoubtedly, had jurisdiction to make the order, and it was properly made on the merits. It will be affirmed, with costs. THE METROPOLITAN NATIONAL BANK OF THE CITY OF NEW YORK, appellant, v. WILLIAM R. MOREHEAD, assignee &c., respondent. WILLIAM R. MOREHEAD, assignee &c., appellant, V. THE METROPOLITAN NATIONAL BANK OF THE CITY OF NEW YORK, respondent. 1. By the act regulating assignments, as it stood before revision, it was declared that all creditors who should not present their claims "within the term of three months, as aforesaid," should be barred of a dividend. The term of three months referred to was the period fixed in a previous part of the act as the time at the expiration whereof the assignee, having given notice to the creditors to come in, was to file the list of creditors who "should claim to be such." In the revision, power was given to the orphans court to extend the time for filing the list, and the language of the provision declaring the bar was altered by substituting the words "within the time allowed by this act" for "within the term of three months, as aforesaid.”—Held, that the act still declares a bar in case the creditor shall not come in within the three months, or such further time, if any, as may be allowed by the orphans court in case of failure to file the list or give the notice. Metropolitan Bank v. Morehead. 2. An order made on April 28th, 1881, requiring creditors to present their claims before July 28th, 1881, held defective in that it did not allow three months for the presentation of creditors' claims.-Held, also, that a creditor who did not put in his claim within that time, but did so afterwards and before distribution, was not barred, but was entitled to receive the same dividends as all the other creditors who had come in. Appeal from order of Essex orphans court. Mr. R. V. Lindabury and Mr. John C. Shaw, of New York, for the bank. Mr. C. Borcherling, for the assignee. THE ORDINARY. On April 28th, 1881, the members of the firm of Marley, Eunson & Co., of Newark, made an assignment, under the assignment act, to William R. Morehead, for the benefit of the creditors of the copartnership. The assignee gave notice of the assignment, as required by the third section of the act, and afterwards gave notice under the fifth section, which requires that notice be given to creditors that all claims against the estate be made as "thereinafter prescribed," or be forever barred from coming in for a dividend of the estate. His notice required the creditors to come in before the 28th of July, 1881 (which day, it declared, was three months from the date of the assignment), or be forever barred. The Metropolitan National Bank of the City of New York is a creditor. It did not put in its claim within the time mentioned in the notice, nor within the three months, but exhibited it on the 30th day of January, 1882. The amount of its claim was at that day $7,054.87. The assignee refused to recognize it, and on the 7th of February, 1882, obtained an order of the orphans court (without notice) disallowing it, and directing that a dividend of twenty-five per cent. on the amount of their claims be paid to the other creditors whose claims had been allowed, and expressly excluding that of the bank, on the ground that it was not presented within the time limited by law. The bank filed a petition praying relief against that order. After Metropolitan Bank v. Morehead. hearing, the court allowed its claim, and, by its order of January 22d, 1884, directed that it be included among those allowed, and that it was entitled to receive future dividends, but not the dividend already paid. From that order both parties appealed. This case presents a question depending for its decision upon the construction of the act before referred to "to secure to creditors an equal and just division of the estates of debtors who convey to assignees for the benefit of creditors." Rev. p. 76. The counsel of the bank argue and insist, and it was so held in the court below, that the act, as it now stands after revision, contains no provision barring creditors. This conclusion is drawn from the assumption that the act, as revised, omits a material provision which was contained in it as it stood previously to the revision-a provision essential to creating the bar. In revising the act, the words "within the term of three months, as aforesaid" were omitted, and the words "within the time allowed by this act" substituted therefor, and it is claimed that the omission of the former words prevents the bar. I do not think so. Let us consider the provisions of the act: The third section provides. that the assignee shall forthwith, after the making of the assignment, give three weeks' public notice by advertisement that the assignment has been made and that the creditors present their claims under oath or affirmation. The fifth directs that at the expiration of three months from the date of the assignment, the assignee shall file with the surrogate a true list, under oath or affirmation, of all such creditors of the debtor as shall claim to be such, with a true statement of their respective claims; but (it provides) he is first to give notice by advertisement, for six weeks next preceding the end of the term, that all claims against the estate must be made as "thereinafter prescribed," or be forever barred from coming in for a dividend of the estate otherwise than thereinafter provided; and the section then gives the orphans court power, in case of failure to file the list or give the notice, to extend and fix the time, not exceeding six months from the date of the assignment. The sixth section provides for the filing by the assignee or any other creditor or other person interested, at the next term of the orphans court, of exceptions to |