
    Mason E. Saunders, Administrator of W. H. Eggleston, vs. The President, Directors, & Company of the Planters Bank of the State of Mississippi, et al.
    
    It is not necessary, before the probate court can declare an estate insolvent, and appoint commissioners of insolvency to .audit and allow claims against it, that an order shall have been previously obtained directing a sale of the deceased’s realty.
    An estate may be declared insolvent by the probate court, when, from a comparison of the debts exhibited to the administrator against the estate,- and an estimate of the probable value of the whole estate, both real and personal, it appears that the amount of debts is greater than the probable value of the property.
    ,The probate court has a discretion, in declaring the estates of decedents insolvent which, when exercised, is conclusive, unless a direct appeal is taken,
    where commissioners of insolvency, duly appointed, fail to make their report at the expiration of their period of appointment, and the probate court fail at that time to extend their time to report in, but at a subsequent period, and within eighteen months from the first appointment, do extend the time to the commissioners to report in, and they subsequently report, and their report is confirmed by the probate court: Held, that the proceedings of the court were regular and proper» and that the report was properly confirmed.
    The statute requiring commissioners of insolvency to post notices of their appointment, in such public places, and to publish them in such newspapers as the court may direct, leaves it discretionary with the probate court to direct the mode of notice; and where the court directs a publication in a newspaper only, and the order of the'court is followed, it will be sufficient, though no notices be published in public places.
    Commissioners of insolvency may report at any time (after the period of their appointment has expired), within eighteen months from the date of their appointment, and their report, if received and allowed by the probate court, will be valid. *
    On appeal from the decision of the probate court of Wilkinson county.
    The Planters Bank and Fielding Davis, representing themselves to be creditors of W. H. Eggleston’s estate, filed their petition in the probate court of Wilkinson county, at the June term-, 1842; and state in the petition that Saunders, as administrator of the estate, represented it insolvent, at the October term, 1840, of the court, and thereupon the court appointed J. C. White, B. H. Williams and Robert Norwood, commissioners of insolvency on said estate, to receive and audit claims, and ordered them to make publication of the time and place of their meeting, for six months in the Woodville Republican, a newspaper printed in that county.
    That at the time of the representation of insolvency, there was a large real estate belonging to deceased, in the county, known to the administrator, but that at the time of the appointment of the commissioners of insolvency, no showing of the insufficiency of the personal estate had been made, nor had it been sold, nor any order obtained to sell the real estate.
    That at the February term, 1841, a showing was made to the court of the insufficiency of the personal estate, and thereupon citations issued to those interested in the lands, to show cause why they should not be sold, and upon return thereof, at the May term, 1841, an order was made for the sale of the lands, which was carried out by the administrator, the lands sold, and report made to the court.
    That the commissioners published notice in the Woodville , Republican, and at the expiration of six months, from the order appointing them', made no report, nor was any order made at that time on the subject. But at the June term, 1841, it was ordered that the commissioners of insolvency have a further time of six months to make their report, and that Seth Clair be appointed commissioner, in the place of J. C. White, and that the said commissioners contiuue to publish the time and place of their meeting, which was done till the 18th December, 1841, but that at the December term, 1841, when the J 7 ^ ? 7 six months had expired, no report was made to the court, nor any order extending the time; but at the January term, 1842, the commissioners made their report, which was received, approved, and ordered to be recorded; at which time the petitioners aver they had.no notice that the report would be made, and that they were thereby deprived of the right of contesting the same.
    That the notice published in the Woodville Republican, was the only notice given, and that no notice was given by posting up at public places, by the commissioners, as required by law.
    Petitioner further states that no decree has been made declaring a dividend, &c. and prays the report to be set aside, &c.
    To this there was a demurrer. The demurrer was overruled, and an appeal taken by the administrator, from the order of the court overruling the demurer.
    
      Quitman & McMurran, for appellant.
    The court below, in overruling the demurrer to the petition, gave, in our opinion, an erroneous judgment, which we seek-to have reversed by this court. . The sufficiency of the petition, in form and substance, presents really the questions for discussion, and we believe we cannot do this more briefly or satisfactorily to ourselves, than by remarking on the grounds set forth in the petition, for setting aside the report of the commissioners of insolvency.
    - The first ground, then, assumed in the petition is, that the estate was reported insolvent, and the commissioners appointed before any showing of the insufficiency of the personal estate, and before any order made for the sale of the real estate, andfcthat the commissioners were acting before any such order of sale of the real estate.
    The 103d section of the Orphans’ Court Law, in the old Revised Code, p. 58, provides, that if the real and personal estate of a deceased be insufficient to pay the debts, then the assets shall be distributed pro rata among the creditors ; and if it appear to the court that the estate is insolvent, then after ordering the lands to be sold, the court shall appoint two or more commissioners, &c.
    Now, admitting for a moment, that the appointment of commissioners, at the October term, 1840, was premature and irregular, still the order made at the June term, 1841, continuing these commissioners, appointing another in the stead of one of them, ordering publication to be continued for six months longer from the last period, was valid, legal, and binding, on all persons interested in the estate. This last order was made after the lands were sold, not merely ordered to be sold, but actually sold, according to the petition, and the petitioner does not attempt to impugn it. It gave six months from the time it was made, for creditors to present their claims to the commissioners, to be audited and allowed. This was all the time the law requires; and although the previous proceedings were admitted-to be irregular and erroneous, this order is sufficient of itself. It confirms and legalizes what was previously done, and renders this part of the proceeding unexceptionable, as unexceptionable and as valid as if the report of the commissioners, and the order of the court approving it, were set aside at this time, and a new commission opened for six months longer.
    But we further insist upon this point, that the order made at October term-, 1840, first appointing the 'Commissioners, was not illegal; that the court had the entire jurisdiction of the estate of Eggleston, and that said first order is valid, also, of itself, and independent of the second order on this subject. 3 How. Rep. 252-258. 5 How. Rep. 736. Parker, Administrator, v. Whiting’s Administrator, 6 How. 352.
    The next ground assumed in the petition is that the commissioners appointed in the first instance, at the October term, 1840, made no report at the expiration of the first six months, and no order made extending their time at the end of those six months, and that the order made at the June term, 1841, was illegal, inasmuch as it extended the time of the commissioners when they had ceased to act.
    Our previous remarks contain an answer to the greater portion of this ground. The court had a right to consider them as commissioners, the court ratified the previous act of appointment, and by the act of continuing two of the commissioners, and adding a new one to the number, made in law a new commissioner, which was unexceptionable. The court so considered by ordering the publication to be continued for six months, and the commissioners so considered it, for it was this last set of commissioners that made the report of the claims they had allowed, and what they had rejected ; and it was this report after the expiration of the last term of six months, which the court acted on,- adjudged to be correct, and ordered to be recorded. The other question, under this head, regards the validity of the proceeding in consequence of the report of the commissioners not having been returned and acted on until a term or two after the expiration of the six months. And does the law require such particularity, such exactitude as insisted upon by the opposite counsel? The provision of the statute is that at the end of the limited time, the commissioners shall make their report, &c. The statute does not enjoin that the report shall be made the first day afterwards, nor the first term afterwards, and if it is done within a reasonable time, and accepted and acted on by the court, it is all that the law requires, all that justice or the policy of the rule requires, where there is no fraud, and that is not pretended in this case. The most the opposite counsel contend for must be that the report ought to have been made at the December term, 1841, instead of the January term, 1842, at which latter term the report was made, confirmed, and ordered to be recorded. On page 60 of Rev. Code, (sec. 107) the court is invested with full powers to appoint new commissioners, continue the time for those appointed to report, &c., as to the court shall seem reasonable and just. And when the court, at the January term, 1842, received and acted finally on the report, the court, to every legal purpose, legalized the omission of the commissioners in not reporting to the December term, if such omission was irregular, which we contend was not. The whole matter of administration continued in court, and whether the report was out a month more or less could not affect it, or the rights of anyone. These remarks cover equally the fourth ground in the petition for setting aside the order of the court confirming the reports.
    The remaining ground is, that the commissioners did not give notice of the time and place of their meeting, by notice posted up, as required by law. It is stated, in the petition, that the notice was duly given in .the newspaper in the county. The language in the statute is, that the commissioners shall make known the times and places of their meeting, “ by causing notices to be posted up at such public places, and published in such newspaper or newspapers as the said orphan’s court shall direct.” This statute is merely directory, arid if not complied with does not avoid the report of the commissioners, after it has been regularly confirmed by the court. The court had jurisdiction of the whole subject-matter, and have acted, and it is too late for those interested now to complain. 3 How. Rep. 252-258. 5 How. Rep. 736. 4 Wendell’s Rep. 440.
    The objections must have been taken before the report was confirmed, and it cannot now be attacked by original petition in the probate court. Blake’s Chancery, 238-39. 3 Johns. Ch. R. 78.
    If errors exist in the proceedings in any way, this can only be done by an appeal or writ of error directly to this court, and cannot be reached by original petition in that court. The decision of this court in the case of Smith v. Hurd, et al., at this term, sustains this.
    
      Gordon and Posey, on the same side;
    This is a proceeding commenced by petition in the probate court of Wilkinson county, to set aside a final order of that court, made at the January term, 1842, confirming the report of commissioners of insolvency, appointed to receive and examine claims presented against the estate of William H. Eggleston, deceased. It appears, by the petition set out in the record, that the report of the commissioners was regularly made, and was duly received, approved, and ordered to be recorded by the court at the January term thereof, 1842. This proceeding, to set aside the report of the commissioners, was instituted in said probate court the 31st day of May, 1842. No objection was made, or exceptions taken to the report of the commissioners, when it was made and returned to the court for confirmation. We think there are several objections which may be legitimately interposed to an interference on the part of the probate court in this matter.
    1. It is conceived that the order confirming the report of the commissioners, was a final judgment of the court -upon that particular subject-matter, and that such judgment and the proceedings upon which it was based, if erroneous, could only be corrected by appeal taken in proper time to the high court of errors and appeals. The order of the probate court, confirming the report of the commissioners, was final upon that particular subject; there was nothing left to be done by the court, as it respects the commissioners or their'action, after their report was received, approved, and ordered to be recorded. Their office ceased to exist; they were discharged, and the court never could exercise any further control over them. A final judgment or decree is where there is a full and complete determination by a court having ample jurisdiction upon the whole merits of the question-submitted for its decision, where nothing remains to be done, which requires its further action relating to the particular subject decided. 1 Harrison’s Chancery Practice, 8th ed. 622. Harvey, et v.x. v. Branson, 1 Leigh’s Rep. 118. 4 How. Rep. 503 and 504. It was at first insisted, on the other side, that no final order could be made in the progress of an administration in the probate court, until the final settlement of the estate, that all orders made until that time were interlocutory, and consequently subject to revision by the court at any time before final settlement was ordered.
    And now, although this singular position has been abandoned by our opponents, they still insist that the order, confirming the report of the commissioners, is not the final order, so far as relates to them; that all the orders, in reference to them and their proceedings, are only interlocutory, until the court orders a dividend to be struck upon the report, and the assets of the insolvent accordingly ordered to be distributed among the creditors. But we are at a great loss to perceive what the appointment of the commissioners, and their action in performing the duties assigned them by law, (which are distinct and separate from the court, see Hutchinson & Howard’s Digest, 411, sec. 83,) could have to do with the determination of the court, in declaring a dividend of the assets of the decedent among his creditors, upon a report of their claims, which had been, by a previous judgment of the court, approved and confirmed, except so far as that report would serve as a basis to guide the court, in apportioning the assets among the creditors; for it cannot certainly be contended that the court, in proceeding to make this apportionment, agreeably to the amounts respectively allowed to the creditors, in the report of the commissioners, could stop to inquire into=the propriety of the report, especially when it had long before adjudged that said report be approved and confirmed, and the commissioners discharged from their trust. It is therefore humbly insisted, that the judgment of the probate' court, approving and confirming the report of the commissioners, and the judgment declaring the dividend and ordering a distribution of the assets among the creditors, are distinct and separate judgments, and that they are each final in their nature. The first, because it fully disposes of the whole question relative to the appointment and action of the commissioners; and the latter, because the creditor can maintain an action against the administrator, in his individual capacity, on the judgment declaring the amount of his dividend, and ordering it to be paid to him. Howard & Hutchinson’s Digest, 410.
    If, then, the order of the probate court, made at the January term, 1842, receiving and approving the report of the commissioners, is a final judgment, upon that particular subject, can that court entertain an original petition, filed for the purpose of revising and correcting any errors that may have occurred in the proceedings upon which said judgment is based, four months after the rendition of such judgment! We think not. A court cannot revise and correct errors in its own judgments, if final, after the expiration of the term at which they are rendered. 2 A. K. Marshall’s Reports, 11. 3 Wheaton’s Reports, 591., 3 American Equity Digest, 356, sec. 18, 20, 21. Such erroneous judgments can only be relieved against and corrected in a court having appellate jurisdiction. The authorities on this point are many and conclusive. A party has ample means of relief afforded him, if aggrieved by the decision of the probate court, in this state. The statute is explicit, “ that any person who may consider him or herself aggrieved, by the judgment, decree, decision, or order of the probate court, shall have the liberty of appealing,” &c. Howard & Hutchinson’s Digest, 473, sec. 20. And it is expressly decided by the high’ court of errors and appeals, that the only mode that error in the decision of the probate courts can be corrected, is by appeal to that court. Griffith, Administrator, v. Vertner, et al., 5 . Howard’s Reports, 739.
    Therefore, we insist, that the order of the probate court, approving and ordering to record the report of the commissioners of insolvency in this case, being final in its nature, is conclusive on all the world, so long as it remains unreversed by an appellate tribunal. For we conceive it to be a well-established principle, universally acknowledged, that whenever a question has been decided by a court, having full jurisdiction over the subject submitted to the decision, that the judgment is conclusive upon the matter embraced in the decision, that it becomes res adjudicata, and cannot be reversed in the same court that made it. 1 Johnson’s Cases, 492, et seq. 1 Johnson’s Chancery Reports, 91. Ibid. 456, 457. 2 American Equity Digest, 418, sec. 3.
    What, then, is the nature of the present proceeding of the plaintiffs, to set aside the judgment of the probate court, approving the report of the commissioners? The petition sets forth, that certain legal errors were committed by the court, in the appointment of the commissioners, and in the manner of executing their commission; and prays the court to set aside the report, on account of such alleged errors, although it is shown by the petition that the court gave its judgment, approving the report, several months previous to the commencement of the present proceeding. No fraud, or corruption, is charged or alleged in the petition, in any way, either upon the part of the administrator or the commissioners.
    It is believed that nothing but an express allegation of fraud, can give the probate court jurisdiction for opening a matter" finally adjudged and decreed by it. Hurd v. Smith, 5 Howard’s Reports, 562. Again, we hold it to be settled, according to the established rules of proceeding in courts of equity, that after a regular decree, or a decretal order, in its nature final, has been made and enrolled, no original bill can be brought,to impeach it, except for fraud. 2 Smith’s Chancery Practice, 48. Mitford’s Pleadings, 83. Elliott v. Bell, i Paige’s Chancery Reports, 263. 1 Johnson’s Chancery Reports, 195. 4 Johnson’s Chancery Reports, 199. And even a bill of review is not sustainable, upon the ground, that the court decided wrong upon, the matters of fact submitted to it. Mitford’s Pleading, 85, n. 1. 3 Paige’s Reports, 371.
    Entertaining these views therefore upon this branch of the case, we think the probate court ought to have sustained the demurrer to the petition, and that it clearly erred in overruling it. But if however, this court should be of opinion, that the judgment of the probate court confirming the report of the commissioners of insolvency was not in its nature final, and that that court had the power, many months after pronouncing such judgment, to revise it, we still insist that there does not appear upon the face of the petition any sufficient grounds for setting aside said judgment. It is alleged, in the petition, that at the October term of said probate court, 1840, the administrator of said William H. Eggleston, deceased, represented the estate of said decedent insolvent. The law has expressly declared and pointed out the prerequisites to be performed by the administrator, before the estate can be declared insolvent, and when it is represented as such, and the commissioners of insolvency are appointed, the legal requisites will be presumed to have ,been properly made before the court at the time of the declaration of insolvency. Every court which renders judgment in a given case, is presumed to have had before it, at the time of rendering judgment, all the legal-requisites to enable it to pronounce such judgment. The principal ground of error set forth in the petition, and urged for setting aside the judgment of the court, confirming the report of the commissioners, is that said court, after declaring the estate insolvent, proceeded to appoint the commissioners, before ordering the lands,'tenements, and heredita-ments of the decedent to be sold. Now let it be admitted, that at the time of the first appointment of the commissioners, the' lands of the decedent were not ordered to be sold; it by no means establishes the proposition set up in the petition, that the whole proceedings of the commissioners, and the judgment of the court thereon, were on that account irregular. It is alleged, in the petition, that the first appointment of the commissioners took place in October, 1840, and that at the February term, 1841, the court ordered the real estate of said deceased, to be sold, which was accordingly done. The petition further shows that at the June term, 1841, said probate court continued, and reappointed commissioners of insolvency, to receive and audit the claimsp£ the creditors of said estate; it is further alleged in the petition, that said last appointed commissioners proceeded to perform their duties as such, and that they made their final report at the January term of said court, 1842, which was at that term received, approved, and ordered to record by the court. Now we insist that if there was any irregularity in the appointment of the first commissioners, before the decedent’s lands were ordered to be sold, that inasmuch as said lands were ordered to be sold before the continuation and reappointment of the second commissioners, who alone acted and reported on the claims of the creditors, and whose report was adjudged to be regular, and was approved and ordered to be recorded by the court, that that would cure any defect or irregularity that might exist in making the appointment of the first commissioners before ordering the sale of the decedent’s real estate.
    2. The petitioners do not show by their petition, or pretend that they ever presented their claims before the commissioners, so that they could have passed upon them and reported them in their report, either as allowed or rejected. They did nothing with them which could have enabled the court to have acted in reference to them on the return of the report of the commissioners. They do not show that they made any objection to the report when it was returned and presented to the court for confirmation. The statute declares, “that at the end of the time limited, the commissioners shall make their report, &c.” H. & H. Digest, 409, sec. 80. It further declares, (ibidem) “ that notwithstanding the report of any commissioner, the creditor whose claim is wholly, or in part rejected, or the executor or administrator, who may be dissatisfied with the report on any particular claim, may for good cause, shown to the court, have such claim referred to referees, whose report and award thereon returned to the next term of the court, and approved, shall be final.” Now we think it clear from this language in the statute, that after the report has been duly returned to the court, and approved, and ordered to record, and the commissioners discharged from their trust, that a party who may be dissatisfied with such report, cannot legitimately appear and object to it three or four months after its approval and confirmation. This court, in a late case, Cheioning v. Peck, et ux., 6 How. Rep. 524, have expressly declared that a party dissatisfied and objecting to the report of commissioners of insolvency, must make known his objections by way of exception to the report at the first term, at which it is returned for approval. This decision we think of itself is decisive of this case.
    3. By reference to the time of the first appointment of the commissioners, as shown in the petition and the time of .filing said petition, and to that part of the statute (Howard & Hutchinson’s Digest, 409, sec. 80,) which declares that upon the appointment of the commissioners, “ six months, and such further time, (as the circumstances of the case may require,) not exceeding eighteen months, shall be allowed by the said court to the creditors for bringing in and proving their claims before said commissioners,” &c., and taken in connection with the last clause of the same section which declares, “ And if any creditor shall not make out his claim with the commissioners within the time of their commission, or before referees, or at common law, in the manner the act provides, he shall be forever barred of his debt or demand,” &c. It will be seen that the claims of the petitioners are clearly barred, for by their own showing, they did not make out their claims with the commissioners, within the time of their commission, nor does it appear that they ever took any steps whatever, so far as relates to the commissioners of insolvency, until after the time permitted by law to the court for extending the time to the commissioners, within which they could act, had expired. We further contend that after the expiration of eighteen months from the first appointment of the commissioners, the probate court has no power by Jaw to do any act in reference to the action of the commissioners, except it be to receive and approve their report, when presented, or to reject it when presented, if irregular or improperly made, or for fraud expressly charged, or in ease they shall have, failed to make their report within the time limited by law, in which latter event the court is authorized and required to appoint new commissioners, or to extend the time of the first to such time as shall appear reasonable and just. Howard & Hutchinson’s Digest, 411, sec. 84. And by an act passed in 1839, if the commissioners fail to make their report within the time limited by law, power is given the court to compel them to report by citation, &c. Howard ■& Hutchinson’s Digest, 421, sec. 122. Thus we think these petitioners have lost their rights by their own laches, and that it is now entirely too late for them to ask relief in the same court where they were in contemplation-of law parties, after that court has finally disposed of the proceedings of the commissioners before whom they could have had their claims properly adjusted and reported.
    
      Smith and Davidson, for appellees.
    This was a proceeding in the probate court of Wilkinson county, by petition, to set aside an order of said court confirming the report of commissioners of insolvency on the estate of W. H. Eggleston, deceased. '
    The facts on which the petition was based, are as follow :
    1. There was no showing of the insufficiency of the personal property of said estate at the time of the appointment of the commissioners, and the order made for the sale of the real estate ; and that the commissioners acted under said order Jong before said order was made for the sale of the real estate.
    2. That -the commissioners, appointed under said order, made no report at the time limited by law for the bringing in of their report; and that at the expiration of said time there was no order made extending the time.
    3. That the order of said court, made at the June term, 1841, extending the time for the report of said commissioners, was illegal, their authority having expired at a preceding term.
    4. That the notice given by said commissioners of the times and places of their meeting was illegal, not having been posted up at three public places, as required by law.
    5. That no report was made by the comnfissioners at the end of six months from the date of the extension of their time to report; and no order made extending their time at the expiration of six months from the June term, 1841.
    6. That afterwards (their authority having expired) the said commissioners reported to said court, the petitioners having no notice of the same. By which irregularities petitioners were deprived of the opportunity of excepting to their said report.
    These facts are admitted by the demurrer of Saunders.
    On this state of facts the first question which presents itself is, whether it was competent for the probate judge to set aside the order confirming the report of said commissioners of insolvency.
    It is assumed that the principles regulating the practice of the chancery court will be applied to the proceedings of the probate court on the subject under investigation.
    1. The question, then, of the power of the probate court to vacate said order, will depend upon its character. Was that order or decree final? Did the order, receiving and affirming the said report, make an end of the cause pending in said court? Did it decide the whole matter in progress, costs and all, leaving nothing further for the court to do? If not, according to a well understood rule of chancery practice, it was competent for the probate judge to vacate said order. Harvey, et ux. v. Bran-son, 1 Leigh. 118. Calk v. Stribling, 1 Bibb, 124. 4 Howard, 504 and 505.
    2. We are at a loss to perceive on what ground it can be maintained that that order in this case can be considered a final decree. It certainly did not make a final adjustment of the estate. It is true that it made a final decision as to the rights of the creditors to have satisfaction out of the estate of the decedent, but did not fix the respective amounts which were to be paid. It is precisely analogous to an interlocutory judgment at law, where a judgment by default is taken in an action for damages. The plaintiff thereby is entitled to recover something, which is to be ascertained by the verdict of the jury. The order in this case is not more conclusive of the facts embraced, than any other interlocutory order made in the progress of a cause, and its character is to be determined by the extent of its operation. It is not more final in its character, or conclusive of the facts on which it is predicated, than the order declaring the estate insolvent and appointing the commissioners of insolvency.
    3. But admitting, by way of argument, that it was a final decree, we insist that it was perfectly competent for the court to revise it, (if found to have been erroneous) in the form in which it was done.
    The order in this case was certainly not a decree upon the merits of the whole case presented. It may be assimilated to a final decree in a court of chancery, before enrollment. And although it might not have been regular to set it aside on motion, it was undeniably so to do it on petition, as was done in this case. Redly &¡ others v. Shaberet, 1 Johns. Ch. R. 200. Craig, et al. v. Buchanan, et al. 1 Yerger, 141. See also Green v. Tunstall, et al., 5 Howard, 638.
    Was the order confirming the report erroneous?
    We apprehend that it was on various grounds. 1. The court had no jurisdiction to appoint the commissioners. The facts stated in the petition, and admitted by the demurrer, show that a state of facts did not exist, on which the jurisdiction of the court to appoint commissioners of insolvency could attach. Neither the real or personal property of the state had been sold, the court, therefore, could not judicially know that the estate was insolvent. It is true that the court is vested with a general jurisdiction to appoint commissioners, where an estate has been shown to be insolvent; but the facts establishing the insolvency must be regularly established before that general jurisdiction can be brought into operation. The case, we apprehend, is precisely analogous'to the appointment of an administrator on an estate of a person living. The grant of administration would be absolutely void. 5 Cond. Rep. 28. 3 Ibid. 1.
    2. The legal notice of the times and places where the commissioners met was not given. See H. & H. 411.
    3. They were in fact not commissioners. Their authority had expired in April, 1841, and the order, not reappointing, but continuing the time, was not made until June of that year.
    4. Under the last extension of time their authority had expired before the report was made, and the petitioners surprised by the subsequent exhibition of the report.
   Mr. Chief Justice ShakKet

delivered the opinion of the court.

The appellees, as creditors of William H. Eggleston, deceased, filed their petition in the probate court of Wilkinson county, praying the court to set aside a report made by commissioners of insolvency, appointed to audit claims against Eg-gleston’s estate, and also to set aside the order for receiving and confirming the report, for alleged irregularities in Saunders, the administrator, in making the report of insolvency, and for irregularities in the proceedings of the court and the commissioners. Waiving the point, whether the petition was filed in proper time, we will consider the merits.

The irregularities and defects complained of are the following, to wit: First, that the estate was reported insolvent by the administrator, and commissioners of insolvency appointed, before any showing had been made of the insufficiency of the personal estate, and before any order was made directing that the land should be-sold, to pay the debts, before which it could not be ascertained that the estate was insolvent; and also that the commissioners were acting under their commission, long before the court ordered a sale of the real estate. Second, that the commissioners failed to report within six months, as required, and the court also failed to make an order at the expiration of that time, allowing them a further time to report; and that the order subsequently made at June term, 1841, long after the six months had elapsed, allowing them further time to report, was void, because, by failing to report within the time first allowed, they had ceased to be commissioners. Third, that the commissioners did not give notice, as the law directs, of the times and place of their meeting, by posting up such notice. And, fourth, that the commissioners did not make their report within six months from the June term, 1841, as required by the second order of the court, by which the time for making the report was extended; nor was there, at the expiration of that time, any order made allowing a further time to receive claims and report, but that in fact they did not report until January term-1842, when their authority had ceased in December preceding. To the petition the administrator demurred, which being overruled, he appealed.' We have, therefore, only to determine whether, from the face of the petition, the prayer ought to be allowed.

The first objection, taken to the proceedings of the administrator and the court, is based upon an erroneous construction of the law in reference to insolvent estates. The statute speaks of two kinds of insolvencies; the one being only partial and the other total. When the administrator discovers that the personal estate will be insufficient to pay the debts, he may so report to the probate court; and on his exhibiting an account of the debts and the estate, the court may, if it is satisfied that ■it is necessary, order the proper steps to be taken, preparatory to a sale of the real estate. H. & H. Dig. 407, sec. 76. Then it is that the personal estate must appear to be insufficient before an order can be. made to sell the land. But this section does not look to a total insolvency of both personal and real estate. On the contrary, it seems to presuppose that, by a sale of the land, the whole of the debts may be paid. The 80th section provides for a case of total insolvency, and it does not require a previous showing, as to the insufficiency of the personal estate, but a showing, generally, that the whole estate will be insufficient. In making a report of insolvency, the administrator is required to exhibit an' account of all the debts that have come to his knowledge, and also an account of the entire estate. This is required for the purpose of satisfying the court of the truth of the report. It is evident, from the nature of things, that at this stage of the proceedings, positive certainty cannot be attained. The administrator must be governed in his report, and the court in its proceedings, by the probable value of the estate; because the actual value cannot be known until it is sold.

It is stated, in the first objection to the proceedings, that commissioners of insolvency were appointed before an order was made to sell the lands, and it is insisted that the order of sale should have [preceded the appointment of the commissioners, and the language used in the statute is relied on, which is as follows, to wit: “And if it appear to said orphan’s court, that such estate is insolvent, then, after ordering the lands, tenements, and hereditaments of the testator, or intestate, to be sold, as aforesaid, they shall appoint two or more fit persons to be commissioners,” &c. Thus it will be seen, that the objection is not taken because the court did more or less than it was authorized to do, but because 'it did not follow the precise order prescribed in the statute. This is a circumstance so wholly immaterial, that it certainly can avail the petitioners nothing. When an estate is insolvent, it is to be equally distributed amongst creditors, the land being their assets; and the purpose of the law is as well accomplished, by appointing commissioners before making an order of sale, as otherwise. Both orders have to be made, and the one is not dependent on the other. It is also said the order appointing commissioners was irregular, because it could not be known that the estate was insolvent. Perhaps such orders aré, in some instances, made where the estate turns out to be solvent; for, as already observed, the precise value of the estate cannot be known, but this does not make the order void. The court and the administrator must act from the best lights they have. The showing must be such as to furnish prima facie evidence of insolvency, and then the court may proceed to make the necessary orders. It has a discretion, which, when exercised, is conclusive, at least unless a direct appeal be taken.

It seems, from the tenor of the petition, that when commissioners of insolvency were first appointed, which was at the October term, 1840, six months were allowed them to make their report. They failed to report at the expiration of that time, and the court, within that period, also failed to extend the time for the report, but at a subsequent term, to wit, at June term, 1841, the court did make an order enlarging the time for the report, by giving six months longer. The second objection is predicated on this failure of the commissioners to report within the first six months, and also on the failure of the court to extend the time before the expiration of that period. The counsel, on this state of the facts, have assumed the position that •the power of the commissioners ceased at the expiration of six months, and that as the court did not extend the rule to report whilst they were still in power, that its order is void. Such a conclusion is not justified by the law. The court is expressly authorized to keep open the commission for any length of time(i not exceeding eighteen months. Section 80. It is the duty of the commissioners to report within the prescribed time, but their acts done within the time, do not become void in consequence of a failure to report. The court, in this instance, too, has a discretion which it may exercise, by allowing further time. The 84th section gives express authority to do so in case the commissioners should not report, and it seems to have been framed to meet just such a contingency as that presented by the petition. The power of the court over the commissioners did not cease at the expiration of the six months, but it continued until the purpose of the appointment was accomplished, and it was competent for the court at any time, within the eighteen months, to enlarge its rule. This it did, and afterwards received and approved the report,’ which was a ratification of what had been done.

In the next place, the validity of the report is attacked because the commissioners did not post up notices of the times and place of their meeting, as the law requires. The petition admits that they published notices in a newspaper, published in Woodvile. The language of the statute is, “ and the said commissioners shall cause the times and places of their meeting to attend the creditors, for receiving and examining their claims to be made known, by causing notices to be posted up in such public places, and published in such newspaper or newspapers, as the said orphan’s court shall direct.” The law does not prescribe any exact mode or precise time for giving notice, but directs generally that the order of the court shall be followed in this respect. The only rule prescribed by the law is, that the commissioners shall follow the order of the court. The petition contains no averment that they departed from the order of court, and if they did not, their acts are not open to attack on that account. Nor does it even aver that the petitioners were not notified by the publication in the newspaper; they therefore have not been prejudiced because notices were not posted up, and cannot complain.

The last ground assumed for reviewing and setting aside the proceedings is very much the same as the first. It seems that the commissioners failed to make their report at the expiration of the second term of six months, which had been allowed, which expired on the 18th December, 1840, and that the court, also failed to give further time for making the report. They did, however, report at the January term, 1842, and the report was received, which the court in its discretion had a right to do, as eighteen months had not elapsed from the time of their first appointment. The remarks made on the first ground of objection, apply also to this.

Neither of the special exceptions taken in the petition to the proceedings, can be regarded as well founded in law, nor does the petition contain any other allegation, which could justify the court in setting aside the proceedings, even if its power to do so admitted of no question. The demurrer, therefore, should have been sustained, and as we are to give such judgment as the court below should have given, the demurrer is sustained, and the petition dismissed.  