The opinion of the court was delivered by
Redfield, J.
This case was heard on demurrer to the orator’s bill. The bill avers, in substance, that the orator loaned money to the defendant, as administrator of Nehemiah Weeks’ estate, and took his note for the loan; that defendant has assets in his hands belonging to the estate of Nehemiah Weeks sufficient to pay this debt; that defendant is personally poor, and in bankruptcy. Hiram Weeks, Admr., is the sole party.
I. There is no one interested, as heir, creditor, or otherwise, in the assets of this estate made parties ; or in position to protect the assets of the estate from being perverted, and misappropriated *118by the administrator. The administrator is bound to take the possession, and care of,property of the intestate, and appropriate the same under the direction of the Probate Court. He has no legal power or right to borrow money, and pledge the property of the estate in payment; and not having the power to bind the property of the estate, he binds himself. The bill, then, in its aim, and purpose, seeks to obtain a decree, appropriating the assets, belonging to the heirs of the intestate to pay the private and personal debts of the administrator. This is not a proceeding, in due course of law, to distribute a portion of the estate to a person on whom right or title is cast by law. There is no party defendant, that represents the heirs; or has an interest to protect the estate, or resist its sequestration. If there were equity in the bill, the court would not proceed to a final decree, unless the parties in interest were before the court. But we think there is no sound equitable ground for relief. If the orator “ supposed ” that the administrator had the legal right to borrow money and pledge the assets of the estate for its payment, he was mistaken in the law, and it was his misfortune, and not a ground for relief. It is said that the money borrowed was used by the defendant for the benefit of the estate. If the administrator pays money in properly, caring for the property of his trust, whether the money is borrowed, or comes from his own pocket, it is the proper province of the Probate Court to reimburse the administrator, by crediting such disbursements in his administration account; and the sureties in his official bond have an equity, superior to any creditor of the administrator to diminish, or prevent, their liability for a devastavit of the estate. And we think the Probate Court possesses every equitable power that could, properly, be exercised by this court; and this court will never interfere with matters appropriately belonging to probate jurisdiction, except in aid of that court.
In Luscomb v. Ballard, 5 Gray, 405, the court say : “ The law is, that by a promise, the consideration of which arises after the death of the intestate, the estate cannot' be charged, but that the administrator is personally liable in his contract. And whether the amount is to be repaid, from the estate, is a question for the Court of Probate in the settlement of his account.” See also *119Sumner, Admr. v. Williams, 8 Mass. 162" court="Mass." date_filed="1811-10-15" href="https://app.midpage.ai/document/sumner-v-williams-6403767?utm_source=webapp" opinion_id="6403767">8 Mass. 162; Taylor v. Mygatt, 26 Conn. 184" court="Conn." date_filed="1857-04-15" href="https://app.midpage.ai/document/taylor-v-mygatt-6577209?utm_source=webapp" opinion_id="6577209">26 Conn. 184. In Freeman v. Holt, the Supreme Court of this Stat,e held the same doctrine, Windsor County, 1879. The case of Field et al. v. Wilbur et al., 49 Vt. 157" court="Vt." date_filed="1876-10-15" href="https://app.midpage.ai/document/field-v-wilbur-6580536?utm_source=webapp" opinion_id="6580536">49 Vt. 157, relied upon by the orator, has not much analogy to this case. The defendant Wilbur, in that case, residing in Georgia, held in trust a small farm in this State. He employed orators to build a barn on this farm. The bill was brought to charge the property with the cost of building the barn. The court, Ross, J., say: “ Usually third persons, making such improvements at the request of the trustee, are confined to their personal surety against the trustee. There are exceptions to this rule. When the trustee resides abroad, as in this case, and has no property that the orators can reach, and when the trust property has been enhanced in value, and made more productive, by the expenditure and labor of orators thereon, we think the orators have the right to have their improvements on the property made a charge on the property and its income.” And the court decreed that the trust property be charged, not for the cost of the barn, but “ only for such sum as the trust property has been enhanced in value by the erection of the barn.” The Court of Equity had the sole jurisdiction in that case. In this case the estate is in due course of settlement and distribution in the Probate Court, which has special and exclusive jurisdiction, by law. The decree of the Court of Chancery is affirmed, and cause remanded.