The plaintiff seeks to recover from the defendant the sum of $1,150 as an alleged over-payment of a claim against the estate of the deceased, the plaintiff, as executrix, having allowed and paid the defendant’s claim in the sum of $1,450, and now alleges that the estate is insolvent and that said payment was an overpayment to the defendant.
It does not appear from the complaint that there has been a judicial accounting in the estate, and while the case of Woodruff v. Claflin Co. (198 N. Y. 470), cited by the plaintiff as an authority for such an action, permits such a suit, the same case also holds that no such action may be brought until there has been a judicial accounting and a definite determination of the insolvency of the estate. Judge Willard Bartlett, writing the opinion, says (at p. 473): “ Hence whether the over-paid creditor shares the erroneous belief of the administrator that the estate is solvent, or is acquainted with its true condition, he is equally obligated to return the surplus he has received over the dividend to which he was entitled when it has become judicially ascertained that the estate is not large enough to pay all the debts in full.” (See, also, Morris v. Porter, 87 Me. 510.)
The motion is, therefore, granted, with leave to the plaintiff to serve an amended complaint within five days if he be so advised.