A bill in equity does not lie to recover a claim against the estate of a deceased person, when the creditor has an ample remedy by ordinary proceedings in the settlement of the estate in the probate court.
If his remedy by litigation in the probate court is doubtful, the question whether the bill can be maintained may be postponed, by a continuance of the case, to await the result of such litigation.
DOE, C. J.
"Demands against any estate not due, or depending on some contingency, may be filed in the court of probate, and the judge, after due notice, may require the administrator to retain in his hands, on settlement of his account, such sum as may be necessary to pay the same." G. L., c. 198, s. 6; Gen. St., c. 179, 8. 6. "The commissioner shall examine and allow all just demands which the deceased-owed that shall be exhibited to him, although such demands may not then be payable. . . . At the end of the time limited in the commission, the commissioner shall make his report to the probate office, and present a list of all the claims presented for allowance, and the amount allowed thereon." G. L., c. 199, ss. 7, 14.
The plaintiffs presented to the commissioner of Wheeler's estate their claim in writing, consisting of a copy of the agreement, and a schedule of the outstanding notes indorsed by them in pursuance of the agreement upon which a contingent liability was asserted. The commissioner reported that "no hearing was had upon the claim, but it is admitted that there is a contingent liability upon the agreement of which said paper is a copy:" and this report was accepted. As no account has been settled by the executor or administrator, it would seem that the time has not elapsed in which the judge of probate can require the administrator to retain a fund for the payment of the plaintiffs' demand. The commissioner's report does not state the amount that was due or would become due. But it does not appear that the amount was known, or could have been ascertained without a settlement of the company's affairs, or that there should have been such a settlement, or that there is any ground of laches on which the plaintiffs' claim can be defeated.
The referee finds that with the executor's approval the notes were renewed, and the company's business and indebtedness judiciously remained unsettled, awaiting a more favorable opportunity to sell their property and wind up their affairs. The executor informed the plaintiffs' agent that he had in his hands $6,000 or $7,000, part of Wheeler's estate, which he intended to hold until the contingent liability was settled; and the executor's executor still holds about $5,000 of the fund retained for the payment of the plaintiffs' claim.
As the plaintiffs have not made it clear that they cannot recover contribution by proceedings in the settlement of Wheeler's estate in the probate court, they do not show themselves entitled to relief in this suit. The case is continued to give them a reasonable time for such proceedings. If it is found that they have not an ample remedy in the probate court, the question whether this bill can be maintained will be further considered.
Continued.
STANLEY and CARPENTER, JJ., did not sit: the others concurred.