The existence, or claimed existence, of money or other property in the possession of one person or party, and of conflicting claims thereto by two *Page 446 or more others, are necessary conditions precedent to the maintenance of an action in the nature of interpleader under our statute. General Statutes, § 1019. In this case the plaintiff alleges that he has in his hands, after the acceptance of his final account as administrator, a small balance to which six persons or parties, cited in as defendants, present conflicting claims. It is not specifically alleged in what capacity this balance is held, but it clearly appears from the complaint that the plaintiff holds it in his capacity as administrator c. t. a. of Elizabeth Hagerty's estate, and in the due course of the settlement and distribution of that estate not yet fully completed.
Of these six defendants, one, John S. McCarty, upon the allegations of the complaint, is in no position to lay claim to any part of this fund. The only way in which he is brought into possible relation to the matter in controversy is through his appointment at one time by the Court of Probate as trustee for the benefit of Hagerty. That appointment, however, became terminated long since by reason of his resignation and the appointment and qualification of the defendant Bailey in his stead.
Three of the remaining defendants and alleged claimants are Hagerty, the life tenant of certain real estate owned by the testatrix; Bailey, trustee for his benefit; and Richard J. McCarty, the beneficiary of the rest and remainder of the testatrix's property. In so far as these persons may have conflicting claims, they are such as arise out of the settlement and distribution of the estate which the plaintiff is administering, and as such they are for the Court of Probate to deal with, at least in the first instance. If that court has not already determined to whom the balance in the plaintiff's hands should be paid, it is within its province to do so. If it has already determined that matter, as the plaintiff's *Page 447 brief seems to admit that it has, such determination is conclusive in the absence of an appeal therefrom to the Superior Court. The Court of Common Pleas is powerless to assume jurisdiction in the premises under the cover of an action in the nature of interpleader. State v. Blake, 69 Conn. 64, 78, 36 A. 1019.
The defendants Donovan and the Clinton Company are parties who, claiming to be creditors of Hagerty, have brought suit against him, and made service upon the plaintiff administrator as garnishee. They, therefore, are not in a position to assert a claim to any part of the fund in the plaintiff's hands. They have only taken the first step to gain that position by instituting suits against Hagerty and sequestering the money in the plaintiff's possession to remain there for the satisfaction of judgments they may obtain in those suits. If such judgments are rendered, they will have succeeded only in substituting themselves for Hagerty in his relation to the fund. The rights which they will then be able to assert are Hagerty's and they are determinable, as we have seen, by the Court of Probate. Upon their determination by the order of that court, whether favorably or unfavorably to Hagerty, if such determination has not already been had, all possibility of conflicting claims will have vanished. As between the two attaching creditors there can be no dispute. The plaintiff's position as to them is only the ordinary one occupied by a garnishee in his relation to factorizing creditors, attended with no hardships or hazards, and fully protected by the provisions of statute. General Statutes, §§ 942, 943.
There is no error.
In this opinion the other judges concurred.