
64 U.S. 90 (____)
23 How. 90
DANIEL GREEN'S ADMINISTRATRIX
v.
FLETCHER CREIGHTON, IN HIS OWN RIGHT, AND AS EXECUTOR OF JONATHAN McCALEB DECEASED.
Supreme Court of United States.

*93 It was submitted on printed arguments by Mr. Freeman for the appellant, and Mr. Yerger and Mr. Wharton for the appellee.
*104 Mr. Justice CAMPBELL delivered the opinion of the court.
The intestate of the plaintiff, as an heir of Wheeler Green, deceased, and claiming, by assignment of the remaining heirs, the entire estate, filed this bill against the defendant, in his capacity of administrator of Amos Whiting, deceased, and of executor of the will of Jonathan McCaleb. He states, that Albert Tunstall became the administrator of the estate of Wheeler Green by the appointment of the Court of Probate of Claiborne county, Mississippi, in 1836; that he gave bond for the faithful performance of his duties, with Amos Whiting as his surety; that Tunstall received a large amount of property belonging to the estate, and committed a devastavit; that in the year 1841, his intestate summoned Tunstall before the Probate Court to make an account, and upon that accounting he was found to be indebted to him, as heir, sixty-one thousand one hundred and ninety-four 76-100 dollars; which sum he was required to pay by the decree of the court, and authority was given to prosecute a suit on the administration bond. The bill avers that Tunstall and Whiting, his surety, are both dead, and that all of his other sureties are insolvent. It charges that the defendant, Creighton, as administrator of Whiting, has assets in his hands for administration, and that a portion of the assets is in the hands of McCaleb, who is the surety of Creighton on his bond to the Probate Court, as administrator of Whiting.
The object of the bill is to establish the claim of the intestate and his representative, arising from the judgment against *105 Tunstall and the breach of his administration bond, on which Whiting is a surety, against the administrator of Whiting and his surety, and to obtain satisfaction from them to the extent of the assets in their hands belonging to that estate, and for this purpose they seek a discovery of the assets, and account and payment.
The defendants appeared to the bill, and allege that the estate of Whiting has been regularly administered, and that returns have been made to the Probate Court of Claiborne county, Mississippi, of whatever property came to the hands of the administrator, Creighton, whose character as administrator is admitted, and that he was then engaged in administering the estate under the laws of Mississippi; that the estate had been reported to the Probate Court as insolvent several years before this suit was instituted, and that commissioners had been appointed by that court to receive and credit the claims; which commission was still open for the proof of claims. They contest the validity of the judgment recovered against Tunstall, and the truth of the account preferred against them, and deny the jurisdiction of the Circuit Court to entertain this bill. The connection of McCaleb with the bond of Creigbton is admitted, and also that a portion of the money of the estate of Whiting had been deposited with or lent to him. Upon the hearing of the cause on the pleadings and proofs, the bill was dismissed for want of jurisdiction, and by the agreement of the parties the record has been made up so as to present that question only. None other will, therefore, be considered. In the organization of the courts of the United States, the remedies at common law and in equity have been distinguished, and the jurisdiction in equity is confided to the Circuit Courts, to be exercised uniformly through the United States, and does not receive any modification from the legislation of the States, or the practice of their courts having similar powers. Livingston v. Story, 9 Pet., 632.
The judiciary act of 1789 conferred upon the Circuit Courts authority "to take cognizance, concurrent with the courts of the several States, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive *106 of costs, the sum or value of five hundred dollars, and * * * the suit is between a citizen of the State where the suit is brought, and a citizen of another State."
The questions presented for inquiry in this suit are, whether the subject of the suit is properly cognizable in a court of equity, and whether any other court has previously acquired exclusive control of it. The court has jurisdiction of the parties. In the Court of Chancery, executors and administrators are considered as trustees, and that court exercises original jurisdiction over them, in favor of creditors, legatees, and heirs, in reference to the proper execution of their trust. A single creditor has been allowed to sue for his demand in equity, and obtain a decree for payment out of the personal estate without taking a general account of the testator's debts. Attorney General v. Cornthwaite, 2 Cox, 43; Adams Eq., 257. And the existence of this jurisdiction has been acknowledged in this court, and in several of the Courts of Chancery in the States. Hagan v. Walker, 14 How., 29; Pharis v. Leachman, 20 Ala. R., 663; Spottswood v. Dandridge, 4 Munf., 289. The answer of the defendant contains an assertion that, prior to the filing of the bill, the estate of Whiting was reported to the Probate Court of Claiborne county as insolvent, and thereupon that court had appointed commissioners to audit the claims that might be presented and proved, as preparatory to a final settlement, and that the commission was still open for the exhibition of claims.
But of this statement there is no sufficient proof. Neither the report nor any decretal order founded on it is contained in the record, and the proceedings referring to one are of a date subsequent to the filing of the bill.
The question arises, then, whether the fact of the pendency of proceedings in insolvency in the Probate Court will oust the jurisdiction of the Circuit Court of the United States. In Suydam v. Brodnax, 14 Pet., 67, a similar question was presented. A plea in abatement was interposed in the Circuit Court in Alabama, in an action at law against administrators, to the effect that the decedent's estate had been reported as insolvent to a Court of Probate, and that jurisdiction over the *107 persons interested and the estate had been taken in that court. This court declared that the eleventh section of the act to establish the judicial courts of the United States, carries out the constitutional right of a citizen of one State to sue a citizen of another State in the Circuit Court of the United States. "It was certainly intended," say the court, "to give to suitors having a right to sue in the Circuit Court remedies coextensive with those rights. These remedies would not be so, if any proceedings under an act of a State Legislature to which a plaintiff was not a party, exempting a person of such State from suit, could be pleaded to abate a suit in the Circuit Court."
In Williams v. Benedict, 8 How., 107, this court decided that a judgment creditor in a court of the United States could not obtain an execution and levy upon the property of an estate legally reported as insolvent in the State of Mississippi to the Probate Court, and which was in the course of administration in that court. The court expressly reserve the question as to the right of a State to compel foreign creditors, in all cases, to seek their remedies against the estates of decedents in the State courts alone, to the exclusion of the jurisdiction of the courts of the United States.
The cases of Peall v. Phipps, 14 How., 368, and Bank of Tennessee v. Horn, 17 How., 157, are to the same effect.
The case of the Union Bank v. Jolly, 18 How., 503, was that of a judgment creditor who recovered a judgment against administrators, who subsequently reported the estate of their decedent insolvent. After administering the estate in the Probate Court, it was ascertained that there was a surplus in their hands. The creditor had not made himself a party to the settlement in the Probate Court; and the administrators contended that his claim was barred.
This was a suit in Mississippi. This court determined that the creditor had a lien upon the assets thus situated.
Thus it will be seen, that under the decisions of this court, a foreign creditor may establish his debt in the courts of the United States against the representatives of a decedent, notwithstanding the local laws relative to the administration and *108 settlement of insolvent estates, and that the court will interpose to arrest the distribution of any surplus among the heirs. What measures the courts of the United States may take to secure the equality of such creditors in the distribution of the assets, as provided in the State laws (if any) independently of the administration in the Probate Courts, cannot be considered until a case shall be presented to this court.
The remaining question to be considered is, whether the debt described in the bill entitles a plaintiff to come into a court of equity, under the circumstances. It is well settled, that no one can proceed against the sureties on an administration bond at law, who has not recovered a judgment against the administrator. 5 How. Miss. R., 638; 6 Port., 393. But this rule is not founded upon the supposition that there is no breach of the bond until a judgment is actually obtained. The duty of the administrator arises to pay the debts when their existence is discovered; and the bond is forfeited when that duty is disregarded. The jurisdiction of a court of equity to enforce the bond arises from its jurisdiction over administrators, its disposition to prevent multiplicity of suits, and its power to adapt its decrees to the substantial justice of the case. Moore v. Walter's Heirs, 1 Marsh. R., 488; Moore v. Armstrong, 9 Porter, 697; Carew v. Mowatt, 2 Ed. Ch. R., 57.
In this case, the original debtor, Tunstall, has died insolvent. Whiting, his surety, has died insolvent. A portion of the assets belonging to the estate of the latter is in the hands of the surety of this administrator. A discovery of the amount and nature of the assets in hand, and their application to the payment of the debt, are required, if they are subject to the application.
We conclude that the Circuit Court was authorized to entertain this suit, and that the decree dismissing the bill is erroneous.
Decree reversed.
