It seems that most, if not all, of the matters urged as grounds of complaint in this bill, could very properly have been litigated and determined by the orphans’ court. That court, by our various statutes, is invested with enlarged powers over the estates of deceased persons; but the enactments conferring this authority do not prohibit the courts of chancery from the exercise of that jurisdiction which had previously vested in the courts of chancery, and in such case, the uniform interpretation is, that they confer concurrent, not exclusive jurisdiction. 1 Story’s Eq. 96, <§> 80. It is clear, that in the exercise of its original powers, which remain unimpaired by statutory inhibition, the courts of chancery have jurisdiction over estates in the direction and control of executors ánd administrators, and in protecting the rights of creditors, as well as decreeing distribution of the assets. But as the exercise of this power is not exclusive, but concurrent with the orphans’ court, the question arises in this case, whether that portion of the assets of the estate which was embraced in the final settlement had in the orphans’ court, and upon which that court has adjudicated, can now be made the subject of an original application to chancery. It is not denied but that there may be cases where the jurisdiction of the orphans’ court, limited as it is by legislative grant, may not enable that court to afford relief ; in such cases, the court of chancery is adequate to the emergency. Leavens v. Butler, 8 Por. 381. But when that court, having jurisdiction of the subject matter, proceeds to determine upon it, can the parties resort to the chancery court to overhaul its decisions ? The general rule is, that when courts of law and equity have concurrent jurisdiction,' and a defendant elects to defend at law and fails, he shall not afterwards be permitted to recover in equity, unless such failure has resulted from unavoidable accident or fraud, unmixed with negligence on his part. Thomas, et al. v. Hearne, 2 Porter, 262.
In Cherry & Bell v. Belcher, 5 S. & P. 131, the court say that where a bill in chancery is filed by a distributee to compel the payment, by the representatives of an estate, of a distributive share, the fact that the orphans’ court has previously by settlement (final or otherwise) ascertained the *144amount to which the distributee is entitled, will not preclude the representatives from showing mistakes in that settlement, or payments subsequent to the settlement, and of which he was then ignorant; or any other matter which in equity and good conscience may be relied on in defence.
In Blakey, Adm’r, v. the Heirs of Blakey, 9 Ala. R. 391, it is held that the chancery court may take jurisdiction, after proceedings have been commenced in the orphans’ court, in a proper case, and having jurisdiction for one purpose, may retain the bill for all purposes, and proceed to make a final settlement. In this case, a portion of the assets was withheld by the administrator, and the bill sought to enforce the trust and to discover assets, &c.
These authorities are persuasive to show, that although the orphans’ court may first have taken jurisdiction, yet as there are assets (assuming the charges in the bill to be correct, and the demurrer admits them, if well stated,) in the hands of the administrator not administered, and as the settlement in the orphans’ court, though it may purport to be final, remains to be yet completed as to the various sums left in the hands of the executor, we think the bill can be well sustained. But when the trust fund is ascertained, there are, as we are advised by the bill, other persons, creditors, who are interested in the fund: these should be parties, either complainants or defendants, to the bill. So neither can the land be subjected to the payment of the debts, without the heirs are made parties.
As to the interest charged against the complainants, they agreed to pay it when they purchased the property, and they alledge no fraud, imposition or mistake, in giving the note, but only misapplication of the interest by the administrator. There is therefore, no reason why they should not be charged with it. The injunction should therefore have been dissolved. We. are of opinion, and so decree, that the decree of the chancellor be reversed, and the cause remanded; that the complainants be allowed to amend their bill making the proper parties; and that an account be taken of the assets* and distribution be decreed of the trust fund.