The opinion of the court was delivered by
Redfield, J.This is an appeal from the court of chancery. The object of the bill is to vacate a sale, claimed, by Slason and Langdon, to have been made to them, by Hoit Guernsey, of certain property, real and personal, during his last illness. Slason is one of the administrators, and has not inventoried nor taken any account of this property, as belonging to the estate. The bill seeks to make him accountable for it, or for its value.
A preliminary question has been made in the case, in regard to the right of the creditors to come into a court of chancery for redress, while the estate is in process of settlement in the probate court. But the court have not considered that a sufficient objection to the bill being sustained. The fact that one of the claimants to the estate in question is, also, one of the administrators, is, of itself, a sufficient reason why no adequate redress could be afforded in the probate court, until he was removed from office, which that court could not do, without, in reality, deciding the very question in dispute, and that prior to its formally coming before them. Courts of chancery, in cases of this kind, where the creditors had an interest adverse to that claimed by the *307administrator, have often entertained jurisdiction of the controversy, until the rights of those concerned were determined; and then the case must, of course, be remitted to the probate court for final adjustment and distribution. The ,. . ,, , <. , . ., , , proceeding in the court oí chancery is considered as merely ancillary to that in the probate coiirt, in a matter wherein their forms and mode of procedure do not enable them to afford adequate redress.
It has been urged, too, and with no little plausibility, that one involved in debt to a large amount, and largely insolvent, ought not to be allowed to prefer creditors by a deed, or other instrument, which is under his control during his whole life, and only takes effect at the very moment when a lien upon his property attaches in favor of all his creditors. But the numerous cases decided upon this subject, many of which have been referred to in the argument, all show, that where a deed is delivered to one in trust for the grantee, to take effect at the grantor’s death, unless he shall otherwise direct in his lifetime, and he dies without giving any further direction, the deed does, at the death of the grantor, take effect, as his deed, from the first delivery. From this view of the cases, there does not seem any very valid objection to this mode of preferring creditors, which will justify the court in distinguishing it from the ordinary cases of preferring creditors. It is always an invidious, and, sometimes, an unjust distinction, but one which the law of this state does not prohibit or control. And we think this case is not, in principle, distinguishable from the ordinary cases. There is nothing here indicating any want of good faith, or any attempt at disguise or dissimulation.
In regard to the deed of the real estate, it appears fair upon its face, and bears date and is shown to have been executed at a time, when the grantor certainly was conscious of his actions, to some extent, and so far capable of contracting. The burden of proof, then, lies upon the orators to impeach the conveyance. The proof, we think, falls short of establishing any such degree of imbecility or insanity of mind, at the time of executing and delivering the deed, as would justify this court in determining, with any confidence, that the grantor was not fully aware of the nature and extent of his contract. We incline to think he was. Surely the *308evidence does not show that he was not. The deed of the real estate, we think, therefore, must stand good.
In regard to the personal estate, it is very clear that the intestate never did, understandingly, make any sale or delivery of it. Whatever was done beyond mere naming of the subject, was done by Chauncey Guernsey, the father of the intestate, when his son was past all consciousness, and, literally, in the last agony of existence. It is in vain to expect the court could, or would attempt to sustain a sale and delivery of personal estate, made under these circumstances, Slason must be required to charge himself with the value of this property, in his administration account, and the case must be referred to a master to ascertain that value.
A mandate was sent to the court of chancery to proceed with the case accordingly, this court having first reversed the decree of that court, dismissing the bill.