Carstensen v. United States Fidelity & Guaranty Co.

GILBERT, Circuit Judge

(after stating the facts as above). It is assigned as error that the trial court sustained a demurrer to the complaint for want of jurisdiction of the subject-matter of the action, until such time as the probate court should lose jurisdiction over the res. But it is a settled rule that a creditor may not bring an action against the surety on an- executor’s bond until after the final accounting and settlement of the estate in probate. Commonwealth v. Magee, 220 Pa. 201, 69 A. 805; Reed v. Hume, 25 Utah, 248, 70 P. 998; Probate Court v. Chapin, 31 Vt. 375. Exceptions to that rule are found in eases, some of which are cited by the plaintiff, where claims have been judicially ascertained and by the probate court ordered paid, or where there has been such maladministration of the estate as to constitute a breach of the conditions of the bond, or where the executor has fled from the state, so that jurisdiction cannot be had to compel an accounting. The present case does not come within any of the exceptions, for the claim has not by the probate court been ordered paid. Section 1543, Remington Code, provides: “No claim against the estate shall be paid until the same shall first have been allowed by both the executor or administrator and the court.” And section 1546 provides: “Whenever a decree shall have been made by the court for the payment of creditors, the executor or administrator shall be personally liable to each creditor for his claim or the dividend thereon, except when his inability to make the payment thereof from the property of the estate shall result without fault upon his part. The executor or administrator shall likewise be liable on his bond to each creditor.”

Matters of strict probate are not within the jurisdiction of the federal courts. Sutton v. English, 246 U. S. 199, 205, 38 S. Ct. 254, 62 L. Ed. 664. It is true that where, by state law, parties-interested are given the right to bring an action inter partes as to independent matters in probate, federal courts, if there be diversity of citizenship and a sufficient amount in controversy, may entertain jurisdiction. But, as was said by the court in Waterman v. Canal-Louisiana Bank Co., 215 U. S. 33, 44, 30 S. Ct. 10, 12 (54 L. Ed. 80): “A citizen of another state may establish a debt against the estate. Yonley v. Lavender, 21 Wall. 276 [22 L. Ed. 536]; Hess v. Reynolds, 113 U. S. 73 [5 S. Ct. 377, 28 L. Ed. 927]. But the debt thus established must take its place and share of the estate as administered by the probate court; and it cannot be enforced by process directly against the property of the decedent.” And while.in Payne v. Hook, 7 Wall. 425, 19 L. Ed. 260, it was held in view of the issues involved that a distributee, citizen of another state, might establish his right to share in an estate and enforce such adjudication against the administrator or his sureties, the case was one that came within the exceptions to the general rule above noted, for the complaint alleged gross misconduct on the part of the administrator, his false inventory of the property, his personal use of the money of the estate for his private gain, and his fraudulent acquisition of a receipt in full for the plaintiff’s share in the estate, and it was said in the opinion that a federal court of chancery sitting in Missouri would not enforce demands agdinst an administrator or executor, if the courts of the state having general chancery powers could not enforce similar demands.

The judgment is affirmed.