Where the treasurer of a school district has mingled its funds with his own so that they can neither be identified nor traced, the indebtedness does not constitute a preferred claim against his insolvent estate. Where the claim of a school district against its treasurer has been paid in full by his administrator, upon an agreement by the board of education for a proportionate repayment if other creditors of the intestate should receive less than the full amounts due them, the sum so paid in excess of a decreed dividend may be recovered in an action against the district.
PIKE, J.
The defendants, being unable to identify any portion of the estate left by Stiles as their money, or the product of their money, are not in a position to demand payment in full on account of the trust relation existing between them. York v. York Market Co., 68 N.H. 419. Their only right is that of a general creditor, and as such they are entitled to a share of the balance remaining after the payment of the preferred claims, to be decreed by the probate court. P.S., c. 192, s. 21. The board of education, in behalf of the defendants, promised that if the dividend on the estate should prove less than 100 per cent, such part of the amount received in connection with the agreement should be returned as would give the defendants the same percentage as the other creditors received. Although the promise may have been unauthorized by the defendants, they are bound by it, for they ratified it by receiving the money and applying it to their uses. Rich v. Errol, 51 N.H. 350, 361.
Exception overruled.
PEASLEE, J., did not sit: the others concurred.