H. L. Ritch & Co., et al., Appellants, vs. Burton Bellamy, Administrator, et al., Appellees, 14 Fla. 537

WESTCOTT, J., delivered the opinion of the Court. This action is brought in the Circuit Court by mortgage creditors of the deceased intestate against his administrator, heirs-at-law and distributees. It is instituted 'in behalf of themselves and all other creditors who may come in and contribute. It is a general creditor’s bill, accompanied by a charge of waste of assets, and negligent management by the administrator.

The complaint describes the mortgages of the several creditors; alleges that before the institution of the suit a written suggestion of insolvency of the estate was filed in the county court of Jefferson county; that an order was made by said court requiring presentation to be made of all claims to the judge of said court, and that the claims of the creditors instituting this action have been proved and filed in the county court.

It alleges waste and neglect upon the part of the administrator in the management of the assets, and affirms that upon a fair and just accounting, making all proper charges against the administrator, it will ‘ be found that the estate is solvent.

Plaintiffs pray for an account; that the administration and settlement of the estate may be transferred to the Circuit Court; that the administrator may be charged for his alleged waste and mismanagement; that the several mortgaged premises may be sold and the proceeds applied to the mortgage debts, and for the application of the assets to the payment of the debts, and for a general settlement of the estate.

To the complaint the defendant interposed a demurrer upon the ground that “ the matters therein complained of are now being examined into by a court of concurrent jurisdiction with the Circuit Court, to wit: the county court of Jefferson county, acting in its capacity as a court of probate.” The demurrer was sustained and the bill dismissed. From this order this appeal is prosecuted.

Upon an examination of the constitutional grant of jurisdiction to the county court in the matter of the settlement ®f estates, it will be- found that its authority is confined to surrogate or probate powers, and that it is expressly provided that in no case shall it have jurisdiction where the jurisdiction will conflict with that of the several courts of record.

The circuit court having been previously invested with full original chancery jurisdiction, it is clear that the county court cannot exercise any chancery power, unless the power is of such nature that it may be called as well a probate or surrogate power as a chancery power. Wherever, therefore, a surrogate or probate power is at the same time a chancery power, there is unquestionably concurrent jurisdiction in the two- courts, and wherever it is a purely chancery power, as contradistinguished from a surrogate or probate power, then the jurisdiction becomes exclusive.

When we recollect that the settlement of estates is the fruitful source of accident, mistake, trust and fraud, and that the jurisdiction of the county court in this matter is for the most

part limited to powers granted by statute, it must be clear as a general proposition that a court of equity cannot be limited in its jurisdiction, or prevented from its exercise in such matters, simply because an administrator has qualified and is 2n process of settlement of the estate in the county court.

An account having been presented to an administrator and filed in the county court by a creditor, it certainly could not be insisted that such creditor could not bring a creditor’s bill for that reason, nor could it be insisted that this credit- or, in case the debt was disputed, could not bring his action at law against the administrator, It must be conceded, however, that in the absence of special equities, the county and circuit courts have concurrent jurisdiction in the matter ®f the settlement of administrations, and that in such cases the tribunal which first takes cognizance of the matter in controversy will retain it to the exclusion of the other, unless for some special reason it is made to appear that the probate conrrt cannot administer adequate and complete relief between tbe parties. 17 Ala., 794; 9 ib., 479; 13 ib., 144; 2 Stock.

Chy., 287; 1 Green C. R., 239; 4 John. Ch., 410; 33 Ala., 241; Story’s Eq., secs. 532, 541-2. In this complaint creditors seek to surcharge and falsify the accounts of the administrator'. They charge him with delinquences and seek to recover for alleged waste and conversion of assets. These are unquestionably the proper subj ectsmatter of equity jurisdiction. 8 Port., 400; 2 Wms. Ex’trs, 1104; 4 Cond. Eng. Ch., 94; 9 Port., 704; 15 Ala., 269; 3 Fla., 55.

Several of these creditors hold mortgages upon the real estate oí the deceased intestate, and it must be apparent that a court of equity is the proper tribunal to decree a strict foreclosure and sale. We are not prepared to say that if a sale of this property was directed by the county court, and the proceeds applied to the respective liens, that such pro-needing would be coram nonjudioe.

On the contrary, after •careful examination of the authorities, we incline to the opinion that such proceeding would be sustained, as it pertains to the settlement of the estate and is in one sense but the ■sinjple payment of a debt. At the same time, it cannot be •denied that the foreclosure of a mortgage is a matter which ■does not belong to the jurisdiction of the county court. It is very difficult to define accurately the point from which Uie court of equity has exclusive jurisdiction.

Again, it is a reasonable inference from the allegations of the bill, that the defenses of the administrator to the charge •of improper management and waste of assets are of an equitable character. Under all the circumstances, it seems clear that there are special reasons in this case why a court of chancery should take jurisdiction, and that the powers of the county'court are not adequate or sufficiently comprehensive and flexible to gender complete justice. 17 Ala., 795-6; 31 ib.. 213; 4 John. Chy., 410; Story’s Eq., sec. 543; 8 Port., 396; 13 Ala., 140; 2 Stock. Ch’y, 287; 1 Green C. R., 239.

These features of the case give the court of chancery jurisdiction, and having jurisdiction for one purpose, this will draw to it the right to' adjust the entire administration. 31 Ala., 213. The remarks of Mr. Justice Ormond, in Blakely, adm’r et al. vs. the heirs of Blakely, we think cover this case entirely.

Speaking for the court he says : “ Conceding that the jurisdiction of chancery is concurrent in testamentary matters ■ with the orphan’s court, and that the court which first obtains jurisdiction will be entitled to keep it, there are many ■ cases in which the court of chancery may take jurisdiction after the proceedings have been commenced in the orphan’s court, and having obtained jurisdiction for one purpose, retain it for all purposes and make final settlement.” 9 Ala., 394. What should be the precise form of the decree or order here is a question which can best be determined after answer.

We only decide that there are circumstances demanding the action of a court of equity, and that the demurrer should have been overruled. The judgment dismissing the bill and sustaining the demurrer"is reversed, and the case is remanded for further proceedings.