Neal v. Maxwell ( 1866 )

Handy, C. J.,

delivered the opinion of the court.'

The bill in this case states in substance that the complainant— the appellee here — was appointed administrator de lohis non of the estate of one James M. Rowzie, and in January, 1863, at the solicitation of the appellants, who were the distributees of the estate, he distributed to them the assets of the estate, amounting to $3,536, and took from them refunding bonds, conditioned to refund to him such sum as might be required to pay any debts that might afterwards come against the estate, which arrangement was made privately between him and the distributees, without any order of the Probate Court. But he retained in his hands $2,300 of Confederate money for the purpose of paying a debt due one Iiealy from the estate; which was done by the consent of the distributees. This sum of money was collected by the administrator in payment of a note due the deceased in his lifetime for the sale of a tract of land, and the Confederate money was received when it was the common currency of the country, and was believed to be good, and with the consent of the distributees. The debt of Healy has now come against the estate, and the administrator has no funds to pay it, the said Confederate money being of no value; and the bill prays a decree against the distributees for the pro rata share of each of them to be refunded to the complainant.

The defendants demurred to the bill on the ground that no final settlement had been made by the complainant in the Probate Court, and that that court bas full jurisdiction of tbe matter set up in tbe bill. This demurrer -was overruled, and tbe defendants bave taken this appeal.

We think tbe demurrer was well taken.

The right of tbe complainant to call on tbe distributees to refund tbe money received by them of tbe assets of the estate, depended primarily on tbe question, whether be was chargeable with tbe amount of tbe money received by him in Confederate money. If be was so chargeable, it is clear that be bad no right to call on tbe distributees to refund tbe money they bad received, when be bad retained in bis hands assets of the estate for which be received Confederate money, and which, if collected in good funds, would bave been sufficient to pay tbe debt which was outstanding against the estate. Tbe bill in this case, therefore, in substance, asks tbe aid of a court of equity to allow him credit for this sum of Confederate money; and to compel tbe distributees to refund, of tbe assets distributed to them, an amount sufficient to pay tbe outstanding debt.

The question whether be was chargeable or not, was one peculiarly appropriate to tbe Court of Probates, and which a court of equity bas no jurisdiction to determine. When tbe administrator settles that question in tbe Court of Probates, and it is there determined that be is entitled to credit, to tbe amount of tbe Confederate money received by him, it will be time enough for him to proceed against tbe distributees; which, for aught that appears in this bill, be may do in tbe Court of Probates, or at, law on tbe refunding bonds. But it is very clear that be is entitled to no remedy in any court, against the distributees, until be shall bave been discharged, on account of tbe Confederate money, in tbe Court of Probates.

Tbe decree must, therefore, be reversed, tbe demurrer sustained, and tbe bill dismissed.