112 Me. 156 | Me. | 1914
On appeal from the decision of the sitting Justice dismissing the bill in each case.
Clinton C. Palmer in his bill seeks to establish a lien on Bartlett Palmer’s share in the residue of the estate of Elizabeth C. Palmer in the hands of the executors of her will, to secure payment of advances aggregating $175 made by him to said Bartlett, and to collect from the executors the amount secured by the lien.
The Northwestern Investment Company in its bill seeks to reach the balance of Clinton C. Palmer’s share in the residue of the same estate remaining in the hands of the executors and to apply the same on account of a $1500 note of said Clinton taken by the Company, of which Clinton is Treasurer and which had a paid up capital of only $300, in payment of fifteen shares of its capital stock.
The defendants in each bill allege among other things that the estate is in process of settlement in the Probate Court of York County, that their second account has been filed and is still open for further hearing, that no order of distribution has been made, and that upon final settlement of said estate nothing will be found due to said Bartlett because of advances already made, and the amount, if any, due to said Clinton is uncertain.
This decision was rendered on May 20, 1913, and on June 5, 1913, the executors filed a written motion for further hearing in the Supreme Court of Probate, as suggested in the opinion of the Law Court, upon the matters above referred to, and another motion was pending to
The sitting Justice in his decree, in each case after making a finding of facts, held: “that until the matters mentioned in the three preceding findings are determined, the balance, if any, belonging to the estate of Elizabeth C. Palmer and in the hands of these executors as such cannot be determined.” It was then ordered that each bill be dismissed without prejudice and without costs.
This decree should stand. The estate of Elizabeth C. Palmer remains unsettled. It is in process of such speedy settlement as continuous and protracted litigation will permit. The final account cannot be rendered nor the decree of distribution made until the controverted claims are determined, and the proper tribunal for the determination of those claims is the Probate Court which has full jurisdiction of the subject matter and of the parties. The Law Court in the opinion before cited has in effect so stated, and we merely reiterate it. An action at law does not lie to recover a distributive share of an estate before the amount to be distributed has been ascertained in the Probate Court. Graffam v. Ray, 91 Maine, 234. Hawes v. Williams, 92 Maine, 483-492. And the same rule should prevail in equity, at least in the absence of other and compelling reasons.
The decree of the sitting Justice in each case is affirmed, except in the matter of costs, which we think under all the circumstances the defendants are entitled to. The decree as modified should be in each case, — “Bill dismissed without prejudice and with a single bill of costs.”
So ordered.