Ira Curtis vs. Albert Mansfield & others, 11 Cush. 152

Bigelow, J. Upon the facts stated in this bill, we can see no ground upon which to entertain jurisdiction in equity of this case. The complainant seems to have proceeded mainly on the ground that the death of one of the joint promisors, on the note held by him, had defeated all remedy at law against the administrator and the estate of the deceased promisor; and that his only remedy against them was to be sought in equity. However this might have been ip the absence of any statute provision on the subject, it is very clear that, under Rev.

Sts. c. 66, § 27, a creditor in such a case has a clear and adequate remedy at law against the estate of his deceased debtor. Under this provision, the death of a joint contractor severs the promise, and gives the creditor the same remedy as if the promise had been originally several. The complainant had, therefore, a right to enforce his debt by a suit at law against the administrator of the deceased partner, and thus reach his separate estate, and he cannot ask the aid of a court of equity, for the mere purpose of col lecting a debt, when the law furnishes him with an appropriate and adequate remedy.

It was suggested, that cognizance might be taken of this case in equity, as a suit for contribution among heirs liable for the debts of a deceased person. But the answer to this suggestion is obvious. The sole object of the bill is to enforce the collection of a partnership debt against the separate estate of a deceased solvent partner. Before the heirs can share the property of the intestate, his debts must be paid; they fake only the residue.

There can, therefore, be no claim for contribution among them in a case like the present, because they are not liable for the payment of the debt, nor can they receive the property of the intestate until the debt has been paid. It was also urged that the case might come within the provision of Rev. Sts. c. 81, § 8, giving equity jurisdiction to this court in cases where there are more than two parties having distinct rights and interests, which cannot be adjusted in one action at law.

But that statute was designed to meet a case where a judgment between two parties would leave a controverted claim between the one or the other of them and a third person, not bound by the judgment in a suit between the two. Hale v. Cushman, 6 Met. 425, 431. No such case is here presented. The administrator of the intestate, in all suits against the estate for the enforcement of debts, represents the heirs, who are in privity with him, and bound by the judgment; Mitchell v.

Pease, 7 Cush. 350; so that a recovery against him would settle the rights of all parties in interest, and leave no controverted claim to be adjusted between the heirs. Bill dismissed.