
    Henry Silsbee versus Huldah Ingalls.
    A bill in equity against an administratrix alleges that a debt was due from her intestate, and that she obtained an order of court to sell his real estate for (he payment of his debts, and made a sale accordingly, and admitted she had assets sufficient to pay all the debts, and promised both before and after the sale to pay the plaintiff out of the proceeds thereof; whereby she became a trustee of the same for the sum of money due to the plaintiff ; that in consequence of such promises the plaintiff forebore to commence an action against her until four years had elapsed after the grant of administration, and so the debt became barred by the statute of limita tions ; and that in her administration account the defendant credited the intestate’s estate with the proceeds of the sale, and charged the debt of the plaintiff as being due from the estate, but that she refuses to pay the plaintiff. Held, that the case was not within the equity jurisdiction of the Court, for no trust was shown, and the plaintiff had once, and but for the statute of limitations, would still have, a plain and adequate remedy at law.
    Bill in equity. The plaintiff alleges that he was appointed administrator of the estate of Elizabeth Collins ; that on the 1st of January, 1824, Edmund Ingalls was indebted to her in the sum of $600;'that Edmund Ingalls died, not having paid the debt, and in August 1824 the defendant was appoint ed administratrix of his estate ; that in January 1825 the defendant obtained an order .from the judge of probate to sell real estate of Edmund Ingalls, to the amount of $ 365, for the payment of his debts, and that in October 1827 she obtained a renewal of this order and thereupon she sold real estate to the amount of $365 ; that at a probate court in August 1828 she presented her first account of administration, and therein credited the estate of Edmund Ingalls with the proceeds of the land sold, and charged against the estate, as due thereirom, the amount of the debt due to E. Collins ; that before and since the sale of the real estate the defendant has promised the plaintiff to pay him that demand, admitting that she had assets sufficient to pay all the debts of Edmund Ingalls ; that before the sale she promised to account with the plaintiff when this real estate should be sold, and to pay him out of the proceeds of the sale ; whereby she became a trustee of the sum of money so due to the plaintiff, and now holds the same in trust for him and for the use of the estate of Elizabeth Collins ; that in consequence of the promises of the defendant and of her admission of sufficient assets, and of her promise to account with the plaintiff and to pay him the sum so held by her in trust, the plaintiff did not commence his action at law against her before the expiration of four years from her taking upon herself the administration of the estate of Edmund Ingalls ; and that the plaintiff has frequently applied to the defendant to account with him for the estate which she so holds in trust for him, and to pay him the sum.due to him, but she has never paid the same but has converted it to her own use. And the bill prays that she may answer, &c. and for relief.
    The defendant demurs, because the Court, as a court of equity, have not jurisdiction of the subject matter contained in the bill.
    The case was submitted to the-Court without argument.
    Saltonstall, for the plaintiff.
    Gates, for the defendant.
    JVov. 20 Ch.
    
   Per Curiam.

To bring this case within the equity jurisdiction of. the Court it must appear that here was a “ trust arising in the settlement of an estate ; ” but this is an ordinary case of a debt, for which there was a plain, adequate remedy at law, and would be now, but for the statute of limitations ; and the question is, whether the intervention of the statute bar, by taking away the remedy at law, makes the demand a subject of equity jurisdiction ; and it clearly cannot have that effect.

It is alleged however, that there was a promise by the defendant to pay the plaintiff. But such promise, not being in writing, is within the statute of frauds, and if it were in writing, it would only prove that there is an adequate remedy at law.

It is likewise alleged, that the defendant, by charging the estate of Edmund Ingalls with this demand, in her administration account, has made herself a trustee for the plaintiff. We have not the account before us ; but if she has fraudulently attempted- to exonerate herself as to this amount, in does not prove that the money is held by her in trust for the plaintiff; but she may be liable on a new account, for the fund, to those entitled to claim it.

Bill dismissed. 
      
       The statute of limitations is a good plea in equity, as well as at law. Kane v. Bloodgood, 7 Johns. Ch. R. 90; Bangs v. Hally 2 Pick. (2d ed.) 372, note, and cases cited.
     