Baillio v. Wilson , 3 Mart. (N.S.) 73 ( 1824 )

Porter, J.

delivered the opinion of the court. This is an action commenced in the district court, against the defendant, tutrix of her minor children, beneficiary heirs of the late James H. Gordon, for a debt contracted by said Gordon in his life time. Judgment was given against her, and she appealed.

Error been assigned on the face of the record, that the court in which the suit was commenced, had no jurisdiction of the cause, that it belonged exclusively to the court of probates. Of that opinion is this court, and after the repeated judgments rendered by this tribunal, that creditors of an estate accepted with the benefit of an inventory, must go into the court of probates, and be there paid according to the rank and order of their privilege, we deem it is unnecessary to go into the subject at length. The circumstance of the creditor having a mortgage does not take him out of the general rule. C. Code, 178, art. 138. De Ende vs. Moore, vol. 2, 336.

West'n District, Sept. 1824. Thomas & Baldwin for the plaintiffs, Wilson for the defendant.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and it is further ordered, adjudged and decreed, that the petition be dismissed, the plaintiff paying costs in both courts.