
    Samuel Gasque vs. Isham Moody et al.
    It is competent for the probate court to revoke a grant of letters of administration, when sufficiently advised that they have been improperly granted. After a grant of letters, and the settlement of an estate, another grant of letters' on the same estate, unless it be a grant of letters de bonis non, now in cases provided for by law, is a nullity, and should be revolted by the court, either on the application of any one interested in the estate in any wise, or upon the suggestion of an amicus curias, or at the court’s own instance, when the case is sufficiently established.
    But the probate court cannot revoke letters improperly granted, without due notice to the person to whom they have been granted ; notice to his counsel will not be sufficient.
    In error from the probate court of Greene county; Hon. John Mclnnis, judge.
    At the June term, 1846, Samuel Gasque, of South Carolina, filed his petition, showing that in the latter part of 1834, Ebene-zer Tart died intestate, leaving a considerable personal estate in several counties of this state, but the greater part thereof in Greene county. That the estate of said Tart was indebted to petitioner in the sum of $1000, and he is next of kin entitled to a distributive share of his estate, and prays that administration be granted to him. The petition was sworn to and was granted, and Gasque qualified as such administrator accordingly.
    On a subsequent day of the same month, Martin Moody and Isham Moody filed their petition, praying for revocation of the letters granted to Gasque, upon these grounds, to wit: That at the March term, 1834, of said court, letters of administration were granted to Dicey Jane Crawford on the estate of one Eben-‘ ezer Crawford, an illegitimate child of Martha Crawford, who afterwards married John Gasque.
    That at a sale of the estate so administered on by the said Dicey Jane Crawford, the petitioners purchased certain slaves, t the property of said estate. That Ebenezer Crawford was, after the marriage of his mother, sometimes called by the name of Gasque, and when he had attained years of some maturity, assumed the name of Tart, after his reputed father, Enos Tart, began to notice him. When asked his true name, he generally said it was Crawford. Petitioners show they had no opportunity to contest the grant of letters to Samuel Gasque, as they had no notice, and the proceeding was ex parte; that Samuel Gasque, as administrator, threatens to sue them for the property they so purchased at sale made by Dicey Jane Crawford. ' Wherefore they pray that the letters to Gasque be revoked, and that a special term be held for that purpose.
    Whereupon the probate judge ordered a special term of court to be holden, for the trial of said petition, on the fifth Monday of August, 1846, “and to revoke and annul the letters” granted to Gasque. “That notice be given by publication and posting, &c., and that citations issue to Samuel Gasque and Henry Moun-ger, his attorney, &c.” Citation issued, and was served only on “ Henry Mounger, attorney of Samuel Gasque.”
    At the special term, on motion of petitioners, it was ordered that the orders touching the petition be entered of record, and that said petition be received and filed; and the record recites that “the court being satisfied by examination of witnesses and the records of the court, that said estate had been fully administered upon by said Dicey Jane Crawford, and that said letters had been improperly granted to Gasque; it was further ordered that said letters to Gasque be revoked, and that the testimony of the witnesses be recorded.”
    Witnesses were examined in court to show that Tart was illegitimate, and at times bore the several names of Gasque, Tart, and Crawford. Also, that said Dicey Jane Crawford had fully administered upon all the property she brought to Greene county; that she was the widow of said Ebenezer, <fcc. But under the view of the case taken by this court, the testimony need not be detailed.
    Samuel Gasque sued out this writ of error.
    
      Potter, for plaintiif in error.
    The record shows that Gasque was the duly qualified administrator of Ebenezer Tart, and that the order revoking his letters was ex parte and void. He had no notice of the petition to revoke his letters; the citation to his attorney was a nullity. It does not appear, even, that due notice was given of the holding of the special term at which the proceedings were had.
    The matters of the petition are wholly insufficient to justify the revocation of the letters at the instance of petitioners. They show no right whatever to contest the grant to Gasque. They do not pretend to be either creditors or distributees of the estate, but only insist that they purchased slaves belonging to the estate, at a sale held tinder a previous administration thereon, and show that Gasque threatens to sue, as such administrator, for the property they so purchased. It shows a mere scheme to prevent a threatened suit at-law.
    The petition does not aver that the estate has been fully administered, and so the proof made on that point was wholly irrelevant.
   Mr. Justice ThacheR

delivered the opinion of the court.

At the June term, 1846, of the probate court of Greene county, letters of administration were granted to Samuel Gasque, upon the estate of Ebenezer Tart, who deceased in the year 1834. The .grant of letters was made to him upon the score of his being a creditor of the estate, and likewise interested therein as a distributee. Subsequently, a petition was filed by Isham Moody and Martin Moody to procure the revocation of these letters, and alleging that the estate had previously been administered upon by the widow of the intestate in 1834. These petitioners charged that they had been purchasers of slaves under this administration. The evidence exhibited that the intestate was the illegitimate child of one Martha Crawford, and that at various periods of his life, he had borne the name of his mother, Crawford, that of his reputed father, Tart, and that of the person with whom his mother intermarried after his birth, Gasque.

It is certainly competent for a probate court to revoke a grant of letters of administration, when it shall be sufficiently advised that they have been improperly granted. After a grant of letters and the settlement of an estate, another grant of letters in the same estate, unless it be a grant of letters de bonis non in cases provided for by law, is a nullity and void. Such a grant may and should be revoked by the court, and it may be done on the application of any one interested in the estate in any wise, upon the suggestion of an amicus curios, or at the court’s own instance, provided the case is sufficiently established.

But this action of the court cannot be had without due notice to the person to whom letters have been improperly granted. In the case before us, although notice was directed to be given to Samuel Gasque, the record shows that it was not served upon him, but upon his counsel, which is insufficient. For this reason, the decree must be reversed, and the cause be returned to the probate court of Greene county, to be recommenced by due legal service upon Samuel Gasque.

Decree reversed, and cause remanded for further proceedings.  