If an administrator sell land under probate procedure, Sec. 1683 provides that he shall first pay any mortgage or lien on the land. Sec. 1739 gives the sixth preference to such claims, and Sec. 1740 provides that the preference shall extend only to the proceeds of the property mortgaged. These are mandates to the administrator and properly construed mean that with respect to mortgaged property the lien of the mortgage shall be first paid, and if the mortgaged property has not been sold by the administrator, or in foreclosure proceedings, there is no preference at all, and a mortgage claim shall be classed as other debts against the estate, and should be allowed a dividend estimated upon the full amount of the claim. In re McDonald's Estate, 79 P. (Cal.), 875.

The sixth preference given by our statute includes mortgages in the order of their date. Under this clause of the statute the legal representative is required to pay out of the general assets, all mortgages, chattel and real. If it be a real estate mortgage, the heirs are entitled to have it paid out of the personal estate, which is the primary fund for payment of debts.-Clark vs. Henshaw, 30 Ind. 144; Newcomer vs. Wallace, Ill. 216; Hanson vs. Hanson, 70 Me 508; Walker's Estate, 3 Towle, 229.

The same reasoning and doctrine will apply in a proper case to a chattel mortgage, and heirs may compel pay ment to the end that they may have the property clear and free from lien.-Sutherland vs. Harrison, 86 Ill., 363.

The statute, taken as a whole, simply means that the legal representative shall pay all claims of the above classes before he even protects the estate by discharging liens on specific property; and thereafter he shall protect the estate and the heirs or devisees or legatees thereof by paying liens on property. It does not have the effect of depriving a mortgagee of his collateral or permitting other claims to rank with his as to the proceeds of specific property. The lien otherwise valid will stand for the payment

of the debt, and if there should be no funds the estate will be conditioned as the deceased would have been had he lived and been unable to pay.

Where the statute provides that "the executor or administrator may retain in his hands, in preference to any claim or charge against the estate, the amount of his own compensation, and the necessary expenses of administration." a chattel mortgage will rank with the claims of the administrator.-Shepard vs. Sultzman. 54 P. (Ore.) 882. And s statute providing that "the expenses of administration shall be first paid," applies only to the general fund in the hands of administrator, and liens on specific property must be paid out of the proceeds of the property.-Ryker vs. Vawter, (Ind.) 20 N. E., 294.

A chattel mortgagee, on default, has the right to the possession of the mortgaged property, and an administrator refusing such possession is liable for conversion. Mathews vs. Mathews, 71 P. (Cal.), 344. A statute in probate-procedure fixing the rate of interest to be paid on allowed claims applies only to claims to be paid out of the general assets. -Visalia Sav. Bank vs. Curtis, 67 P. 329. Our own court has held that "the contract of the mortgagor does not terminate with his death.-Litz vs. Exchange Bank of Alva, 83 P. 709.

Should a chattel mortgage claim be presented to the legal representative?

Our statute provides that "all claims arising upon contracts hereafter made, whether the same be due, or contingent, must be presented within the time limited in the notice, and any claim not so presented is barred forever."-Sec. 1619. Sec. 1627 provides that "no holder of any claim against an estate shall maintain any action thereon unless the claim is first presented to the administrator." This statute was amended in California in 1876, and had our legislature adopted the amended statute the question would be as well settled here as it is by

the last proviso of Sec. 1619 as to real estate mortgages. The decided weight of authority is to the effect that the above statutes or similar ones refer to claims against the general assets and do not apply to claims secured by mortgage or lien if the security only is looked to by the creditor.-Woerner's Law of Administration, Sec. 409. However, it was held in California prior to the amendment under a statute identical with ours that foreclosure was barred unless the claim was so presented. - Pitt vs. Shipley, 46 Cal., 154; but see the inconsistent decision of Whitmore vs. San Francisco W., 50 Cal., 145. See also Hibernian Sav. L. Soc. vs. Collin, et al., 7 P., 477. The lien is not waived by presenting the claim to the legal representative.-Bank of Sonoma County vs. Charles, 24 P. 1019. Probate of claims does not affect the right of foreclosure.-Willis vs. Farley, 24 Cal., 490; Moran vs. Gardemeyer, 82 Cal., 96.

It is held that a law attempting to abridge the right of foreclosure, is a law impairing the obligation of contracts.-Edwards vs. Hill, 19 U. S. App., 493.

In view of the holdings in California prior to the amendment, which were followed in some of the other western states, lawyers will probably advise presentation. It should be made under Sec. 1624, the same as if the party intended to rely on the general assets. The estate would not be liable, in any event, for a deficiency unless the claim was presented. -Willard vs. Lewwen, 56 Mich. 15. A claim properly vouched is prima facie genuine, and the burden is on those disputing it.-Valentine vs. Valentine, 4 Redf. (N. Y.), 265. A claim may not be amended after the expiration of the time for presentation.-Estate of Sullenberger, 14 P. 513. If the administrator relies on a defect of form he should so state at the time.-Aiken vs. Coodlidge, et al., 6 P. 712.

CURRENT OKLAHOMA DECISIONS.

CHARLES T. CHERRY, Receiver of the Capitol National Bank of Guthrie, Oklahoma, Plaintiff in Error

NATIONAL BANK-Receivership-Claims AgainstPriority of-How Determined.—

1. Where the Secretary of the Territorial Board for leasing the school land of the Territory without any authority deposited the money, checks and drafts received from the rents of such land in a national bank, and the bank subsequently fails, before the Territory can be paid ahead of the other creditors of the bank, it must affirmatively prove by a preponderance of the evidence, that the particular monies, checks and drafts so deposited, or the proceeds thereof were turned over to the receiver of the bank, or that such deposits went to swell the assets of such bank.

2. Where a bank receives deposits while in a failing condition, and at the time it closes its doors it has on hand a sufficient amount of cash to repay such deposit, such payment will not be made ahead of others when the

evidence on the particular trial affirmatively shows, when measured by the legal presumption, that such cash was deposited by other creditors.

(Syllabus by the Court.)

Flinn & Ames, for appellant.
P. C. Simons, for appellee.

Opinion of the Court by BURWELL, J. : On March 12, 1904, Fred L. Wenner, as Secretary of the Territorial Board for leasing school lands of the Territory of Oklahoma, deposited in the Capitol National Bank of Guthrie, O. T., $3, 349, 66, and on March the 31st, 1904, he deposited with the same bank the further sum of $3, 017,07. All these monies were derived from the leasing of the school lands of the Territory. On April 4th 1904, the Capitol National Bank failed in business, and a receiver was duly appointed. He took charge of the assets, and is the plaintiff in error in this case.

The trial court found that the bank was not insolvent on March 12, 1904 and therefore denied a preference for the $3,349, 65, deposited on that date; but also found that the bank was insolvent on March 31st, 1904, and awarded a preference for the $3.017,07.

We find that the trial court was justified in its findings of fact regarding these two points, but that it was unwarranted in law in allowing a preference for any sum whatever.

Of the $3,017,07, deposited on March 31, 1904, only $43.50 was actual cash, and the balance, $2,971.77 was made up of checks, drafts, etc. There is absolutely no evidence tending to show that these checks and drafts, or the proceeds therefrom ever went into the hands of the receiver. The trial court appears to have treated all this deposit as cash, as it styles the checks and drafts as