majority">COLLINS, J.1

Plaintiff brought a bill in equity, and defendant demurred upon *221the ground that the district court had no jurisdiction of the subject of the action. Plaintiff appeals from an order sustaining the demurrer.

The question to be determined is, has an executor in this state the right to bring a bill in equity in the district court against a co-executor for the purpose of having the amount determined, and to enforce a claim held by the estate against such co-executor, arising on contract entered into with the testator in his lifetime, and due at the time of his decease, when the co-executor disputes the amount and refuses to pay until such amount is ascertained? Plaintiff’s counsel admits that at common law such an action cannot be maintained, but he insists that in equity the rule is to the contrary, and that one executor or administrator may bring a bill against a co-executor, when justice requires it, to ascertain the amount and to enforce a claim of this character. The position of defendant’s counsel is that, where a testator appoints a debtor his executor, the debt becomes, immediately upon his qualification as executor, an asset in his hands, applicable to the purposes of the will, and for which he can only be compelled to account in the probate court, precisely as he must account for other assets, and that, where the amount of the debt is in dispute, the probate court has full power to hear and determine the amount of such indebtedness, as between the estate and the executor.

The jurisdiction of the probate court in this state is fixed by the fundamental law. Const, art. 6, § 7. Its jurisdiction is expressly limited and restricted to the estates of deceased persons and persons under guardianship. If, under this provision, the probate court has exclusive jurisdiction over the subject of this action, the order of the court below was right, and should be affirmed. But if exclusive jurisdiction has not been conferred on the probate court, and if the district court has not been deprived of jurisdiction, the action may be maintained, and the trial court erred when sustaining the demurrer. Even if it be admitted that the probate court can have jurisdiction by holding the debt to have become an asset in defendant’s hands immediately upon his qualification as an executor, and by enforcing its collection in the settlement of his trust account, it would not follow that, where justice required it, and *222there was no remedy at law, an equitable action could not be maintained in district court for the purpose of ascertaining the amount of a disputed claim and for such other purpose as equity might require. Such a case would simply be one of concurrent jurisdiction, and not at all novel. But, in any event, it seems to be well settled that a court of equity will entertain an action brought by one executor on the part of the estate against a co-executor to determine the amount of a disputed claim, or to force an account, or to foreclose a mortgage, or in any other case where justice requires it, there being no remedy at law. Schouler, Exrs. § 403; 3 Williams, Exrs. (Perk. Notes) 2024; 1 Pomeroy, Eq. Jur. § 51; 3 Redfield, Wills, 203, 235; 8 Enc. Pl. & Pr. 699; and the many cases cited in these books. See also Rogers v. Rogers, 75 Hun, 133, 27 N. Y. Supp. 276.

This rule is in the right direction beyond question, and covers the complaint now before us. Nor does this rule infringe upon that laid down in the cases cited by defendant’s counsel, seemingly, to the effect that it is the equitable doctrine that, where a debtor is appointed executor of the will of his creditor and accepts the trust, the debt is presumed to have been paid, is to be treated as an asset in the executor’s hands, and stands upon the same footing as other assets, to be accounted for in settlement of the estate, and in no other manner. The question now before us did not appear in any of those cases, and nowhere is it intimated that a bill in equity will not lie in favor of one executor or administrator, and against a co-executor or administrator, when the latter disputes the amount of an alleged indebtedness and refuses to pay, if justice requires the bringing of such an action, and there is no adequate remedy at law.

Order reversed.

MITCHELL, J., absent, did not take part.

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