
    David R. Wingate, Administrator of Jordan Morgan, deceased, vs. Green J. Wooten.
    If letters of administration are granted, -without good security being required by the probate court, of the administrator, on his bond, or if the security taken shall afterwards become insufficient, the court granting the administration cannot make it, without giving the administrator an opportunity to give further security, and perfect his bond.
    If a court of probate grant letters of administration, it cannot revoke them without giving the administrator due notice, that an application for that purpose has been made to the court.
    W., a creditor of M.’s estate, filed a petition in the probate court, alleging that D. "W., the administrator of M., was wasting the estate, and that his bond was legally defective, and praying that M.’s letters might be revoked ; the petition was granted, without giving D. W. an opportunity to give other security; held to be erroneous.
    On appeal, from the probate court of Hancock county.
    The appellee, Green J. Wooten, filed a petition in the probate court of Hancock county, stating that the appellant, David R. Wingate, was the administrator of Jordan Morgan, deceased ; that the bonds given by the administrator; for his faithful administration, were legálly defective ; that he had removed four of the negroes, belonging to the estate of Morgan, out of this state; and that the petitioner was a creditor of the estate of Jordan Morgan, and largely interested therein.
    The prayer of the petition was, that the letters of administration granted to David R. Wingate should be revoked, and letters granted to some other person. At the January term, 1842, of the probate court, the judge took the petition under advisement, and after hearing the argument of the parties, ordered that the prayer of the petition be sustained, and the letters granted to Wingate revoked.
    The court of probate further ordered that the administration of the estate of Jordan Morgan, deceased, be committed to Asa Russ, on his giving bond, which was done, and Russ was sworn to discharge the duties of administrator de bonis non of Morgan’s estate.
    It was further ordered by the court, that Wingate deliver to Russ all the real and personal estate of Morgan, not administered ; and that a precept issue to the sheriff to take the same into his possession, and deliver it to Asa Russ.
    The precept was issued by the judge of probate, in accordance with the order, on the 9th day of March, 1842.
    From this order of the probate court Wingate appealed to this court; various errors were assigned.
    
      Montgomery and Boyd, for appellant.
    We think it probable the court will perceive, by an examination of the record, that all of the errors, as assigned, are apparent.
    The only doubt which can arise may be started by the statement of the record, that the parties were heard on argument by the court; but the petition was ex parte in its character, and no person could become a party without leave of court.
    This petition should show the petitioner’s interest; he says he is a creditor, and largely interested in the estate, but it is respectfully suggested that the averment is too general and vague, to justify the petitioner in invoking the aid of the court to protect his interest. We conceive it was necessary that it should show the amount of the debt, the nature of security, and that payment had been demanded of the administrator, who had refused to provide for it. For if he was not in a situation to be injured by the conduct of the administrator, he had no right to petition for any relief.
    But the prayer of the bill is not warranted by our statutes, nor the rules of practice in that court.
    The statute authorizes the court, on petition of any person interested in the distribution of an estate, when the securities of the administrator were not good or have become insufficient, to order the administrator to give further security, and on failure, to revoke the letters of administration. Now this petition says nothing of the insufficiencies of the security, and does not ask that the administrator may be required to give further security. How. & Hutch. 398:
    If the order revoking Wingate’s letters was not erroneous, then the order appointing Russ may be lawful ; but certainly it was erroneous to order the property to be delivered to him, before he executed a bond, as required by the order. And we are at a loss to ascertain whence the court derive the authority to award a precept to seize the property of a deceased person’s estate, and put it in the possession of an administrator. The statute goes no further than to empower the court to order the former administrator to deliver the property to the administrator de bonis non, and to put his bond in suit, if he fail or refuse to comply with the order, or to award an attachment. The statute, How. & Hutch. 399, sec. 48, does not apply. But we deny the authority of that court to order the real estate to be delivered to the administrator, under any circumstances.
   Mr. Justice Clayton

delivered the opinion of the court.

This was a proceeding in the probate court of Hancock county. Green J. Wooten, as a creditor of the estate of Jordan Morgan, deceased, filed a petition, alleging that David R. Win-gate, the administrator, was wasting the property of the estate, and that his bond was legally defective, and praying that the letters of administration might be revoked. The petition was sustained, the letters of administration were revoked, without affording the administrator any opportunity to give other security, and administration de bonis non granted to Asa Russ. From this decision a writ of error was sued to this court.

The statute provides that if administration be granted, without taking good security, or if the security taken shall after-wards become insufficient, it shall be lawful for the court to require the administrator to give other good and sufficient security, and in default thereof, the letters shall be revoked, and administration de bonis non granted. H. & H. 398, sec. 45.

In this case no opportunity was afforded the administrator, to give further security and perfect his bond. His letters were revoked absolutely, without condition, and the administration granted to another. This was not a compliance either with the letter or the spirit of the statute. For this error the judgment will be reversed, and the cause remanded.

It is not necessary now to determine the effect of the grant of the administration de bonis non. The record does not show whether there was a change of possession of the property, or whether it still remains in the hands of the first administrator. There was an order for such change, and if it were made, it is possible some further difficulties may grow out of it, but we cannot now decide upon such supposed case.

Judgment reversed and cause remanded.  