American Surety Co. v. Bethlehem National Bank
In American Surety Co. v. Bethlehem National Bank, 314 U.S. 314, 316, 62 S.Ct. 226, 86 L.Ed. 241 (1941), the Supreme Court recognized an equitable right and allowed a claimant to prove a claim it did not have on the date of insolvency.
The Court allowed the surety company to rely on the equitable rule of subrogation in order to assert the amount of the depositor's claim against the bank. Unquestionably, ratable distribution requires that dividends be declared proportionately upon the amount of claims as they stand on the date of insolvency. 62 S.Ct. at 228.
As to the "provability of claims," the Court expressed no opinion. The Court explained that "to be 'ratable,' the claims must be manifestly estimated as of the same point in time, and that date has been adjudged to be the date of insolvency." Id.
The Court's further comments as to any limitation of the surety's participation are even more illustrative of its position that "ratable" distribution comport with intrinsic fairness, to wit:
On the other hand, if the surety's participation should be limited to the extent now urged by the receiver, the other creditors would profit solely because of fortuitous circumstances and without any relation to reasons of intrinsic fairness. (Id. at 228-29.)