
    NOVEMBER TERM, 1844.
    Charles G. Sanders v. William E. Douglass and William H. Hall, Administrators, &c.
    Executors and administrators may be sued either in the Circuit Courts or before justices of the peace, for claims against the decedent, at any time before the estate is declared insolvent.
    Probate Courts have not exclusive jurisdiction and control over the assets of a , decedent; they may be reached by executions issuing from the circuit or other courts.
    Appeal from the Circuit Court of Madison county.
    This was a bill filed on the chancery side of the Circuit of Madison county, by William E. Douglass and William H. Hall, administrators of the estate of Henry L. Douglass, jr. deceased, to enjoin several judgments rendered against them, by a Justice of the Peace, in favor of Charles G. Sanders. The bill avers that .Sanders, for the purpose of vexing and harassing the complainants, and taking the assets of the decedent out of the jurisdiction and control of the Probate Court, sued them before a Justice of the Peace, who rendered-judgments against them, despite their repeated protestations and assurances-, that the estate was then in a due course of administration under the direction of the Probate Court ; that Sanders had sued out executions, and had them levied on a negro man, the property of the deceased, and would proceed to sell him unless enjoined, &c. The bill further avers, that said estate was in due course of administration, and that the Probate had the exclusive control and jurisdiction over it; and that said Justice had no legal right to render judgments in favor of Sanders, thereby giving him a preference over other creditors of the estate ; that they did not know whether the estate would finally turn out to be solvent 'or insolvent; and prayed for a perpetual injunction, &c. An injunction was granted, enjoining all further proceedings under said judgments. Sanders answered, and admitted he had sued the complainants before a Justice, and recovered judgments, and had executions issued and levied, as he insisted he had a right to do. He denied, that he sued for the purpose of vexing of harassing the complainants, or to interfere with the rights of the Probate Court; but that he sued for the sole purpose of making his debts ; that he had waited on the administrators about two years, and they would not pay him, and he was therefore compelled to sue ; that the estate was solvent, and other creditors could not be prejudiced by his course. He denied all fraud, &c. The defendant moved the Court to dissolve the injunction upon the bill and answer, but the Court overruled his motion and refused to. dissolve the injunction, to which he excepted, and prayed an appeal to this Court.
    
      John G. Ott, for appellant.
    This case appears in this Honorable Court on a bill of injunction filed by the appellees, as administrators of'Henry L. Douglass, deceased ; the answer of the appellant thereto, and his motion to dissolve said injunction; which motion was overruled by the Court below.
    It is admitted that no .suit can be instituted against an administrator under nine months. How. & Hutch. 416, .sec. 105. But the bill does not set up the above act for the injunction. The nine months doubtless was allowed to the administrator, that he should be able in that time to ascertain if the estate was solvent or not, and then to make his report to the Probate Court accordingly. Besides, within or at the close of the nine months the administrator might have good reason to believe that the estate of bis intestate was insolvent, which likewise is not set up in the appellees’‘ bill; only such vague and uncertain expressions, that they do i£ not know whether the estate of their intestate is solvent or insolvent.”
    Again : it will not be denied that an administrator may be sued after the expiration of the nine months from the date of granting letters of administration. How. & Hutch. 412, sec. 88. And the suit will not abate or be dismissed in consequence of the insolvency of the estate ; but the plaintiff (at law) may proceed to trial and judgment. How. & Hutch. 415, sec. 98.
    The appellees were ■ appointed administrators in October, 1839, and they charge in their bill that the appellant now tries to coerce unlawfully the several judgments rendered in his favor by the Justice of the Peace, who had, it seems, jurisdiction over the cases ; and because the estate was then in due course of administration under the control of the Probate Court. The question now is, has the Circuit Court power to enjoin judgments rendered by competent jurisdiction, without a clear showing of insolvency ? Or is it sufficient to show that the estate is in a due course of administration, and that the estate is probably insolvent or solvent ?
    Does it not seem that by law an administrator may be sued in a Circuit Court, and if the estate should prove to be insolvent, the Circuit Court would be compelled to let plaintiff at law have judgment ?
    But suppose the Court has no kind of showing that the estate is insolvent, and on being informed that the estate is in a due course of administration under the control of the Probate Court, iriust the Circuit Court turn round and enjoin that judgment so rendered ? It would seem to be the consequence of the decision made in this case in the Court below.
    The Probate Court certainly cannot stay proceedings at law if the estate be solvent; but if insolvent by mere operation of law, the execution is stayed. No insolvency, however, is set'up in the bill, and I only speak as to'the jurisdiction of the Circuit Court to enjoin judgments on the mere ground of due administration, and the coercion and the vexation spoken of in the bill of the appellees. To coerce money from the assets in the hands of the administrator on execution, his intestate’s estate must be insolvent, and be so declared. To bring a suit against an administrator is not vexatious, if brought after the nine months have expired, because it is a remedy given against a delinquent administrator by our statute. So that in this charge there can be no equity ; besides, the appellant’s answer denies all fraud and other contrivances charged in the said bill.
    With these views, it is respectfully submitted if the Court below did not err in refusing to dissolve the injunction.
    
      Jl. H. Handy, for appellees.
    The pleadings below show that the intestate’s estate was in due course of administration in the Probate Court; that the administrators were acting in regard to it under the sanction of that tribunal ; and that this was suggested to the Court rendering the judgments enjoined. Under these circumstances, it is submitted that no judgment could be rendered against the estate, nor enforced by execution at law, if it had the effect to take any of the property out of the control of the Probate Court.
    At Common Law, letters of administration were granted by the Ordinary, and this was regulated by sundry statutes in England, guarding against an .abuse of the power. Bac. Ab. tit. Executors & Administrators, G. But a Court of Equity also has jurisdiction over administrators and administration of assets, on the principle that, the office is a trust which it is the duty of that Court to enforce. 1 Madd. Ch. 577, 578.
    Accordingly, as soon as this Court has assumed, by a decree, the general administration of the assets, it will by injunction restrain any creditor from coercing his claim at law from the administrator. Ram on Assets (6 Law Lib.), 294 et seq. ; and any creditor or creditors may thus be compelled to take an equal distribution of the assets. 2 Williams on Executors, 1177. This doctrine is sanctioned by Thompson v. Brown, 4 John. C. R. 644, 645, where the authorities are collected, and Chancellor Kent declares it to £‘ rest upon the clearest principles of justice, and it is not destitute of strong support jn public convenience and commercial policy.” The reason of the doctrine is, that the proceeding in equity is for the benefit of all the creditors, and it would be unjust, pending such a proceeding, to allow one cfeditor to compel the payment of his claim in full, when the estate may ultimately be insufficient to pay all the debts. 2 Williams on Executors, 1176.
    By our laws in Mississippi, this extraordinary jurisdiction of the Court of Equity is vested as part of the ordinary powers of the Probate Court, which has (by Rev. Code, ch. 9, sec. 1) full jurisdiction of all testamentary and other matters pertaining to ‘a Court of Probate. The same power is given by the last Constitution, and is recognized in its fullest extent in Carmichael v. Browder, 3 How. 255. When the Probate Court, then, has assumed the administration of the assets, as is stated in Ram on Assets, and Williams on Executors, above referred to, no other Court can directly or indirectly interfere with that administration ; for the Probate Court would in that case no longer have exclusive jurisdiction over the whole estate for the benefit of all the creditors, but would be subject to be interfered with by every impatient or unjust creditor who might sue the administrator. . This jurisdiction, which, whe'n exercised by the Chancery Court, required a decree declaring the assumption by that Court of the administration (as laid down by Ram and Williams, supra), because the power was extraordinary with that Court, requires no such decree or order to its exercise by our Probate Court, because it is the very end and object of the establishment of this Court; and therefore the granting administration, ordering an inventory, making orders of sale, &c., and for the conduct of the administrator, are in this Court equivalent to a decree in the Equity Court assuming jurisdiction. • In equity, the power was extraordinary, and the assumption of it had to be declared by decree ; in the Probate Court, it is ordinary, and vested by law so soon as the estate comes under the superintendence of the Probate Court. Thus, the Probate Court unites in itself, by the very end of its creation, all the powers which the Ordinary and Court of Equity exercised separately in England, in relation to the administration of decedents’ estates.
    The end for which this power was exercised by the Court of Equity, is the same as that for which it is vested in the Probate Court, viz,, for the benefit of all the creditors and of the estate.
    All the reasons and authorities for maintaining the jurisdiction of the Court of Equity in England over this subject, apply with great force to the Probate Court of this State ; and if the Probate Court, under the plenary powers adjudged to belong to it by the case of Carmichael v. Browder, has not power to grant an injunction, like the Court of Chancery, it is certainly entitled to an undisturbed exercise of the jurisdiction which is there decided to be exclusive to it; and a Court of Chancery should restrain, by injunction, any one attempting to coerce his debt by the action of another tribunal, while the estate was in a due course of administration in the Probate Court.
    By sec. 103, Rev. Code, p. 158, it is provided, that before any debts shall be paid, the administrator shall exhibit to the Probate Court an account and statement, showing that the estate is insolvent, if such be the case. By sec. 98 of same Act, this account must be nqade “ as soon as may be.” Section 103 also provides., that the proceeds of the whole estate shall be distributed to and among all the creditors, “in proportion to the sums due to them respectively,” when the estate is insolvent. If, then, the administrator, owing to the complicated situation of the estate, could not exhibit his statement of insolvency until some impatient creditor had sued the estate, and recovered a judgment against it, would not the whole object of this statute, viz., a rateable distribution of the assets among all the creditors, be defeated, and might not some large creditor thus swallow up the whole estate ? • The reason of the thing, and the express requirement of the statute is, that the administrator shall return his account of insolvency “ as soon as may be,” and “ before any debt paid to any creditor.” Does it not clearly follow, that no creditor can prematurely coerce his whole claim from the estate, instead of being subjected to the rule of equitable distribution intended by the statute ?
    It cannot be doubted, for the statute expressly states, that the assets are to be distributed among all the creditors in their just proportions, when the 'estate is insolvent. The question then arises, whether the creditor, after the lapse of nine months, is compelled to refrain from suing, when there has been no account of insolvency returned. It seems clear, that when the administrator has been unable to máke that account, owing to the involved circumstances of the estate, and especially when his failure to do so has been sanctioned and justified by the Probate Court, by orders granting time,- &c., he is no more liable to suit than he was before the lapse of the nine months ; for that time was allowed, in order to ascertain the solvency of the estate, and if the administrator, owing to the peculiar situation of the estate, should be within that time unable to learn its true condition, the same reason exists for not bringing suit.
    But although by the letter of the statute, suit may be brought after the expiration of nine months from the grant of administration, yet when such suit is brought before an account of insolvency is returned, and the administrator meanwhile is justified by the sanetion of the Probate Court, such claim cannot, by being sued on, and reduced to judgment, when there is no delinquency in the administrator, be raised to a privileged claim ; but must take its stand among other claims of equal degree, and be subject to an equal distribution of assets in a due course of administration. This is believed to be in accordance with the spirit of the law, and the clearest principles of justice. Any other doctrine would often place it in the power of some hungry and avaricious creditor, having a very large claim, by great vigilance, to obtain an early judgment against the estate, while the property, owing to its peculiar circumstances, was unsold, and under the control of the administrator, and immediately proceed to sell the whole estate for his claim, leaving nothing for the other creditors. Thus, not only would the appropriate tribunal, established by law for the purpose, be entirely ousted of the jurisdiction and management of an estate placed by the law under its immediate and exclusive control, but the whole estate would be appropriated to the benefit of-one creditor having no preference over the rest, instead of being “ distributed among all the creditors,” as the law requires.
    How then, it may be asked, is the right to sue, given by the statute, to be exercised, and' what is its utility ? It is replied, it must be exercised so as not to interfere with the control of the Probate Court over the estate ; nor to disturb the rule of distribution for the benefit of all the creditors. This will be done by rendering the judgment to affect a legal proportion of assets in due course of administration, as was done in the judgments here -enjoined. The efficacy of the judgment will be to enable the plaintiff to recover what was perhaps a disputed and litigated claim against the estate, and thereby recover by his judgment his just proportion of the estate which was contested.
    As to the solvency of the estate, this is entirely immaterial to the present case ; for whether it be solvent or insolvent, the adjustment of all claims against it is the appropriate and “ exclusive ” duty of the Probate Court; if solvent, the judgment will be paid, and it affords strong reason against dissolving this injunction, and thereby placing it in the appellant’s power further to harass the estate ; if insolvent, the course of equitable distribution should not be interfered with, by dissolving the injunction, and thereby enable the appellant to coerce his whole debt, to the detriment of other creditors.
    The bill states, that the administrators were “justified in all things as to the administration of said estate,” by the Probate Court. The levy upon the property by the executions of the appellant was,- therefore, a direct interference with the estate, which would place it beyond the power of that Court to administer it; and if this doctrine meets the sanction of this Court, it will present the anomalous spectacle of two judicial tribunals having and exercising control of the same subject-matter at the same time, the necessary consequence of which will be that the matter will never be determined.
    The bill sets forth sufficiently the particular facts constituting the appellees’ claim to equitable relief; and it is hoped that the principles on which they are rested will receive the sanction of this Court, in an affirmance of the order below.
   Mr. Justice ClaytoN

delivered the opinion of the Court.

This was a bill filed on the Chancery side of the Circuit Court of Madison county, to enjoin proceedings under several judgments obtained by the appellant before a Justice of the Peace against the appellees as administrators. The Circuit Judge overruled the motion to dissolve the injunction, and the cause comes by appeal to this Court.

In support of the order of the Court below, it is contended that all the assets of a decedent are administered under the jurisdiction and control of the Probate Court, and that no other tribunal ought to interfere, by the rendition of judgment or otherwise ; that this is the true rule as well in cases of solvent, as of insolvent estates. In this instance there had been no suggestion of insolvency.

There is nothing in our statues which gives support to this position, and we regard it as wholly unsustainable. Various directions are given in the legislation on this subject, as to the character and management of suits against the estates of decedents ; but there is nothing which prohibits the trying of them, except their insolvency. H. & H. 410. This careful provision in regard to insolvent estates, goes far to prove the law to be different as to those which are solvent. Our books of reports contain' numerous instances of suits against executors and administrators, all of which are wrong, if this new theo.ry be right.

The doctrine laid down in the class of cases referred to in the brief of the counsel for the appellees, is entirely inapplicable to the question. They were cases of bills filed on the part of creditors against executors or administrators, usually styled a creditor’s bill, or a bill of conformity. In such cases, after a decree, the Court of Equity takes upon itself the administration of the assets, and will not'permit any one to proceed at law, who had not obtained a judgment at law prior to the decree in Equity. But in the administration of the assets, the Court of Chancery always proceeded with due regard to all preferences and priorities obtained before the decree. Morris v. Bank of England, Cases Temp. Talbot, 218; 4 Br. P. C. 287.

Two points of difference will be sufficient to show the total irrelevancy of this doctrine to the case before the Court. 1st. The Court of Chancery never interfered to prevent proceedings at law, until after its own decree was pronounced. 1 Sch. & Lef. 296. And 2d. It never interfered at all upon the application of an executor or administrator, but only at the suit of a creditor. Rush v. Higgs, 4 Ves. 638; Thompson v. Brown, 4 Johns. Ch. Rep. 644. Moreover, there can be no necessity for such bill, whén the estate is solvent; and our statute has provided a more expeditious and less expensive remedy in cases, of insolvency.

The order of the Court below refusing to dissolve the injunction, will be reversed, the injunction dissolved, and the cause remanded.  