Opinion by
Beatty, J.,
Brosnan, J., concurring in the judgment.
This was a bill filed to foreclose a mortgage executed by the testatrix, and after her death presented with the accompanying note to the executors, and allowed as a valid claim against the estate. The defendants demurred to the bill, and that demurrer was sustained and judgment rendered in favor of the defendants.
The ground of the demurrer was that the District Court, acting as a Court of Equity, had no jurisdiction to hear or determine the cause ; that it was a matter exclusively cognizable in the Probate Court.
The only question to be determined on this appeal is, whether the jurisdiction of the Probate Court in such cases is exclusive, or [332]*332whether there is a concurrent jurisdiction in Courts of Chancery to enforce the mortgage against the executors.
It is contended on the part of respondents that the statute of this State in relation to the estates of deceased persons, confers exclusive jurisdiction on the Probate Courts to sell all property, real and personal, of decedents, necessary to be sold for the payment of debts. In support of this proposition, they cite many sections of the Act in relation to the estate of decedents, and also many cases adjudicated in California on a statute almost identical in language with our statute.
Section 150 of our statute reads as follows:
“No sale of any property of an estate of a deceased person shall be valid unless made under an order of the Probate Court, except as otherwise provided in this Act or other Acts.”
The first part of this section exactly corresponds to section 118 of the California Act; but the words italicised in our Act are added to those contained in the California Act.
In California the question arose several times, whether this 148th section of the Act absolutely forbade the making of sales of property belonging to estates of deceased persons, otherwise than upon order of the Probate Court, or was only intended to forbid executors and administrators to make such sales without such order.
At first the Courts were disposed to hold that no sales, whether judicial or otherwise, could be made, or at least ought to be made, of the property of a decedent, otherwise than by an order of the Probate Court. (See Faulkner v. Folsom’s Fxecutors, 6 Cal. 412.)
But subsequently the rulings on this point were changed, and the Courts of that State held this section was only intended to prohibit executors and administrators from selling on their own responsibility, without the order of the Probate Court, and did not prohibit judicial sales if otherwise properly authorized. (See Fallon v. Butler et al., 21 Cal. 24.) Our 150th section, corresponding to their 148th, seems even more clearly than the California Act to authorize the latter interpretation, and we think it should be so interpreted. It is claimed, however, that there are other sections which would by implication at least forbid a Court of Equity enter[333]*333taining jurisdiction of a foreclosure suit against the representative of a decedent.
Section 142 provides that the effect of a judgment shall be the. same, and none other than the mere allowance of the claims by the administrator or executor. Hence it is concluded that the lawmakers could not have intended to allow suits to be prosecuted and judgments obtained on allowed claims, where nothing would result from the judgment but to leave both parties where they were before the judgment. So far as a simple judgment at law for a money demand is concerned, that argument would seem to be almost unanswerable. And perhaps it is to be regretted that the statute does not say in so many words no action at law should be maintained on an allowed claim. Indeed it seems to have been assumed by the learned Judge, who rendered the opinion in the case of Fallon v. Butler et al., (21st Cal. p. 24) that such was the purport of the California Act.
Rut, in truth, neither the California nor Nevada Act contains any such prohibition. Section 138 of our Act reads as follows: “ No holder of any claim against an estate shall maintain any action thereon, unless the claim shall have been first presented to the executor or administrator.” Section 136 of the California Act is, we believe, identical in language with .this. This language does not in terms prohibit the bringing of suits on claims allowed, nor restrict suits to claims rejected. Nor is there any other clause containing such prohibition or restriction. It only requires the presentation to the administrator or executor with the proper proofs so' as to inform him of the facts of the case, and allow him to act for the best interests of the estate. There is also another section (141) which will protect the administrator or executor from costs if he allows all that is justly due.
Now as the right to bring suit for any claim past due is a common law right, we do not think this Act should be so construed as to be in derogation of that right. If any one should be foolish enough to bring suit on a simple money demand against an administrator, he would probably have to pay costs -and gain nothing but an empty judgment, which, so far as this State is concerned, would place him in no better condition than the simple allowance of the demand.
[334]*334Possibly, if he wished to proceed against the estate of the decedent in another State or county, the judgment might be more available.
But when the demand is secured by mortgage, and other parties besides the decedent and mortgagee are interested, it would frequently be absolutely necessary to invoke the aid of a Court of equity jurisdiction to afford proper relief.
Suppose A borrows $1,000 of B, and executes his note and mortgage on a house and lot to secure the debt. He afterwards sells the house and lot to C, subject to the mortgage, and then dies. The property is depreciated in value so as to be worth only $500. C, the purchaser, has come under no personal obligation, and A’s estate is not fully solvent. How is B, to get his money ? To get the claim allowed against A’s estate won’t do, because the estate is not solvent and would only pay a dividend without the mortgaged property. To abandon all claim against the estate, and pursue his remedy against the mortgaged property in the hands of C, he would get only $500. The Probate Court could not make an order to sell the property of C, who is alive. The only way would be to proceed in equity against C and the executor of A; have a decree against the land, to sell that first, and then an order on the executor of A to pay, in the due course of administration, any balance which the mortgaged premises did not discharge.
We hold, then, that Equity Courts have jurisdiction' to foreclose mortgages against the estates of deceased persons. In some cases those Courts have exclusive jurisdiction. That is in those cases where it is necessary to bring before the Court other parties over whom the Probate Court can have no jurisdiction. In other eases, where the only necessary parties to the proceeding are the mortgagee and the representative of a deceased mortgagor, the jurisdiction of the Probate Court is concurrent with that of the Equity Court.
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Opinion by
Beatty, J.,
Brosnan, J., concurring in the judgment.
This was a bill filed to foreclose a mortgage executed by the testatrix, and after her death presented with the accompanying note to the executors, and allowed as a valid claim against the estate. The defendants demurred to the bill, and that demurrer was sustained and judgment rendered in favor of the defendants.
The ground of the demurrer was that the District Court, acting as a Court of Equity, had no jurisdiction to hear or determine the cause ; that it was a matter exclusively cognizable in the Probate Court.
The only question to be determined on this appeal is, whether the jurisdiction of the Probate Court in such cases is exclusive, or [332]*332whether there is a concurrent jurisdiction in Courts of Chancery to enforce the mortgage against the executors.
It is contended on the part of respondents that the statute of this State in relation to the estates of deceased persons, confers exclusive jurisdiction on the Probate Courts to sell all property, real and personal, of decedents, necessary to be sold for the payment of debts. In support of this proposition, they cite many sections of the Act in relation to the estate of decedents, and also many cases adjudicated in California on a statute almost identical in language with our statute.
Section 150 of our statute reads as follows:
“No sale of any property of an estate of a deceased person shall be valid unless made under an order of the Probate Court, except as otherwise provided in this Act or other Acts.”
The first part of this section exactly corresponds to section 118 of the California Act; but the words italicised in our Act are added to those contained in the California Act.
In California the question arose several times, whether this 148th section of the Act absolutely forbade the making of sales of property belonging to estates of deceased persons, otherwise than upon order of the Probate Court, or was only intended to forbid executors and administrators to make such sales without such order.
At first the Courts were disposed to hold that no sales, whether judicial or otherwise, could be made, or at least ought to be made, of the property of a decedent, otherwise than by an order of the Probate Court. (See Faulkner v. Folsom’s Fxecutors, 6 Cal. 412.)
But subsequently the rulings on this point were changed, and the Courts of that State held this section was only intended to prohibit executors and administrators from selling on their own responsibility, without the order of the Probate Court, and did not prohibit judicial sales if otherwise properly authorized. (See Fallon v. Butler et al., 21 Cal. 24.) Our 150th section, corresponding to their 148th, seems even more clearly than the California Act to authorize the latter interpretation, and we think it should be so interpreted. It is claimed, however, that there are other sections which would by implication at least forbid a Court of Equity enter[333]*333taining jurisdiction of a foreclosure suit against the representative of a decedent.
Section 142 provides that the effect of a judgment shall be the. same, and none other than the mere allowance of the claims by the administrator or executor. Hence it is concluded that the lawmakers could not have intended to allow suits to be prosecuted and judgments obtained on allowed claims, where nothing would result from the judgment but to leave both parties where they were before the judgment. So far as a simple judgment at law for a money demand is concerned, that argument would seem to be almost unanswerable. And perhaps it is to be regretted that the statute does not say in so many words no action at law should be maintained on an allowed claim. Indeed it seems to have been assumed by the learned Judge, who rendered the opinion in the case of Fallon v. Butler et al., (21st Cal. p. 24) that such was the purport of the California Act.
Rut, in truth, neither the California nor Nevada Act contains any such prohibition. Section 138 of our Act reads as follows: “ No holder of any claim against an estate shall maintain any action thereon, unless the claim shall have been first presented to the executor or administrator.” Section 136 of the California Act is, we believe, identical in language with .this. This language does not in terms prohibit the bringing of suits on claims allowed, nor restrict suits to claims rejected. Nor is there any other clause containing such prohibition or restriction. It only requires the presentation to the administrator or executor with the proper proofs so' as to inform him of the facts of the case, and allow him to act for the best interests of the estate. There is also another section (141) which will protect the administrator or executor from costs if he allows all that is justly due.
Now as the right to bring suit for any claim past due is a common law right, we do not think this Act should be so construed as to be in derogation of that right. If any one should be foolish enough to bring suit on a simple money demand against an administrator, he would probably have to pay costs -and gain nothing but an empty judgment, which, so far as this State is concerned, would place him in no better condition than the simple allowance of the demand.
[334]*334Possibly, if he wished to proceed against the estate of the decedent in another State or county, the judgment might be more available.
But when the demand is secured by mortgage, and other parties besides the decedent and mortgagee are interested, it would frequently be absolutely necessary to invoke the aid of a Court of equity jurisdiction to afford proper relief.
Suppose A borrows $1,000 of B, and executes his note and mortgage on a house and lot to secure the debt. He afterwards sells the house and lot to C, subject to the mortgage, and then dies. The property is depreciated in value so as to be worth only $500. C, the purchaser, has come under no personal obligation, and A’s estate is not fully solvent. How is B, to get his money ? To get the claim allowed against A’s estate won’t do, because the estate is not solvent and would only pay a dividend without the mortgaged property. To abandon all claim against the estate, and pursue his remedy against the mortgaged property in the hands of C, he would get only $500. The Probate Court could not make an order to sell the property of C, who is alive. The only way would be to proceed in equity against C and the executor of A; have a decree against the land, to sell that first, and then an order on the executor of A to pay, in the due course of administration, any balance which the mortgaged premises did not discharge.
We hold, then, that Equity Courts have jurisdiction' to foreclose mortgages against the estates of deceased persons. In some cases those Courts have exclusive jurisdiction. That is in those cases where it is necessary to bring before the Court other parties over whom the Probate Court can have no jurisdiction. In other eases, where the only necessary parties to the proceeding are the mortgagee and the representative of a deceased mortgagor, the jurisdiction of the Probate Court is concurrent with that of the Equity Court.
But whilst the two Courts have concurrent jurisdiction in such cases, we think a Court of Equity has a discretion in any given case as to whether it will exercise that jurisdiction or leave the parties to the ordinary remedy in the Probate Court. In this respect, Courts of Equity are different from Courts of Law. If a Court of Law has jurisdiction of a case and the parties thereto, it has no [335]*335discretion ordinarily to hear and determine it. Bnt Courts of Equity exercise a discretion as to whether they will hear a case or afford the relief sought in various cases where there is no question as to their power and jurisdiction.
■ If a suit is brought where there are necessary parties, whose rights could not be adjudicated fin a Probate Court, the Equity Court must of necessity hear the case. But if there are no necessary parties to the suit except the mortgagee and the representative of the mortgagor, then the Chancellor might well refuse to entertain the bill, unless some special hardship would arise to the mortgagee by turning him over to the Probate Court.
If the mortgagee’s security was sufficient to pay his debts at the time of bill filed, but likely to depreciate in value, and the personal estate of decedent were involved in litigation, and it was likely to be a long time before it was determined if it could be made available to pay the debts of the deceased, perhaps it would be just and proper to sell the mortgaged property under a decree in equity, before waiting to see if the personal property would pay the mortgage and other debts. If, on the other hand, the estate was perfectly solvent, and enough of the personalty to pay all debts, it would be hardly proper for the Chancellor to hurry the sale of the mortgaged property before the executor could realize from the personalty and extinguish the mortgage debt with the proceeds.
Every case of this sort would present itself very much to the discretion of the Judge, and he might, in the exercise of a sound discretion, either hear and determine the case, or else on motion dismiss it without prejudice, leaving the party to pursue his remedy before the Probate Court.
But we think a demurrer cannot be sustained in a case like this unless the bill shows two things affirmatively: First, that it is a case where the Probate Court can administer full relief; second, that the Court is actually proceeding and taking steps for the sale of the property.
The latter proposition is not shown in this bill, and therefore the demurrer should not have been sustained. The judgment must be reversed; but it is left entirely discretionary with the Court below whether it will proceed with the trial of the case, or on motion dismiss the bill without prejudice, allowing the plaintiff to show, if he [336]*336desires it, either by amendment to his bill, or otherwise by affidavit, any special reasons for proceeding with the case. It is also entirely in the discretion of the Court below, if the foreclosure proceeds in that Court, to allow costs to the plaintiff, or withhold them, as he shows or fails to show on trial the necessity of this proceeding, as the Court may apportion the costs in its discretion.