The complainant moves that the cause be assigned for hearing on the respondent's exceptions to the master's report.
The present respondent, Alice N. Smith, administratrix on the estate of Henry S. Smith, the original respondent, opposes the motion and has filed a plea in the nature of a plea puisdarrein, in which she sets up that the said Henry deceased on April 25, 1893, intestate, being at that time a resident of Providence: that she has been appointed administratrix of his estate by the Municipal Court of Providence, and has duly qualified herself to act as such: that this suit was begun against the said Henry in his lifetime: that on February 20, 1894, she represented to said Municipal Court that said estate was insolvent, and that that court has appointed commissioners on said estate to receive and examine the claims of the several creditors of the same and how they are made out; that said commissioners have duly qualified themselves to act and have appointed times and place for *Page 724 meeting creditors for that purpose: she, therefore, prays in and by her plea that no further proceeding should be had in this suit and that the complainant be required to present and prove his claim if any he has, against said estate to said commissioners, and to discontinue this suit.
In support of the claim in the plea, the respondent refers to Pub. Stat. R.I. cap. 186, § 18, as follows: —
"All actions brought against any executor or administrator before the estate is represented insolvent, or against the testator or intestate in his lifetime, which shall survive, and in which the executor or administrator being cited shall appear, shall be continued until it shall appear whether the said estate is insolvent or not, and if found insolvent, the proceedings shall be conducted as above provided." That is, by proving the claims before the commissioners, or at common law, as provided in the same chapter, §§ 12-17.
We do not think that the prayer of the plea should be sustained. The suit is not an action; nor is it primarily a suit for the prosecution of a claim against the intestate or the administratrix, but it is a bill in equity for winding up the partnership which existed between the complainant and the deceased, and the taking of the partnership accounts. It is true that as a result of the taking of the partnership account, a sum of money, may, perhaps, be found to be due to the complainant from the estate of the deceased, but that result is incidental rather than the main purpose of the proceeding. If such should be the result, when the decree ascertaining the amount due to the complainant has been obtained, the complainant must then present and prove his claim as so ascertained to the commissioners, or in the event of not doing so, be limited for its recovery to the surplus of the estate remaining in the hands of the administratrix, after deducting the amount of the claims allowed by the commissioners, or of losing it altogether if there be no surplus. Gardner v. Gardner, 17 R.I. 751. But in the meantime we think that the complainant is entitled to proceed with the suit. Indeed, until there has been an adjustment of the partnership accounts to obtain which, if the parties cannot *Page 725 agree, there is no better means than the present suit, we do not see how the administratrix can settle the estate.
The motion to assign the cause for hearing is granted.
The cause was then sent to a master and subsequently came before the court on exceptions to the master's report.
November 23, 1894.