
    John E. and Drury Dance vs. McGregor et als.
    
    1. Leave to file a bill of review should be obtained by motion in open court. But where the bill was filed by order made at chambers and a general demurrer filed thereto, this objection is waived, and the court will proceed to determine on the validity of the decree sought to be reversed.
    2. .No decree can be regularly rendered against an administrator do bonis propriis on a bill filed against him in his representative character not suggesting a devastavit.
    
    3. A decree rendered against an administrator de bonis propriis after the administrator has filed his bill under the act of 1837, suggesting the insolvency of the estate, is erroneous, and will be reversed on bill of review.
    This bill of review was filed by John E. and Drury Dance, in the Chancery Court at Murfreesborough against Martha Mc-Gregor and her guardian R. M. Burton and Andrew J. Mc-Gregor and his guardian Andrew J. Donelson and others.
    The allegations of this bill are as follows:
    Complainants, your orators John E. and Drury Dance, would represent unto your honor, that on the 7th day of August, in the year 1839, the said minors above-mentioned, by their said respective guardians, and the said Mary and Thomas, by the said Robert M. Burton as their next fi-iend, filed in the Chancery Court of Rutherford, at Murfreesborough, their original bill against the said Ransford McGregor, as the executor of one John McGregor, deceased, and against the said Levi Wade, John C. Wade, Jacob D. Donelson, as sureties of said Ransford in bis executorship, and also against your orators John E. and Drury, as the administrators of Russell Dance, deceased, also a surety for the said Ransford in his said executorship.
    In the said bill it was alledged, that said minors, the complainants therein, were the children of John McGregor, deceased; that the said John McGregor departed this life in the summer of 1835, having first made his last will and testament, in which he appointed his wife Milberry McGregor and the said Ransford McGregor his executor and executrix; that the said will was duly proved at the August term, 1835, of the county court for said county, and the said Milberry and Rans-ford qualified as executor and executrix of the same; that the said Levi Wade, Russell Dance, Jacob D. Donelson, and one John Wilson, became the sureties of the said Milberry and Ransford, for the faithful execution of their trust; that subsequently, John Wilson, on his application, was released as one of said sureties, and one John C. Ridley was substituted in his stead, and that afterwards one John C. Wade was substituted in the stead of the said John Ridley by the County Court of Rutherford, so that the sureties, at the time of filing said bill, were the said Levi, John C., Russell, and Jacob D. Donelson, as would appear from certified copies of the bonds filed as exhibits with the bill; that the said Milberry McGregor departed this life about the 1st January, 1836, intestate — no division of the estate of the said John McGregor having taken place anterior to her death, and the said Milberry having no specific estate on which administration could be taken out; that the business of the estate of the said John McGregor, as well prior as subsequent to the death of the said Milberry, had been conducted by the said Ransford exclusively, no part of it ever having come to her hands; that the said John McGregor died seized and possessed of considerable real and personal property, of the value of twenty-four thousand six hundred and nineteen dollars, as appeared from the original inventory and account of sales filed by the said Ransford in the clerk’s office of said county of Rutherford, which said inventory, as alledged, was unskilfully made out and impossible to be understood; that at the January term, 3 838, of the County Court of Rutherford county commissioners were appointed to settle with said Ransford, as executor of said estate; that from said settlement it appeared that the said Ransford had left in his hands of the assets of said estate a balance of six or seven thousand dollars or more; that said settlement was as confused and unintelligible as the inventory, that vouchers were not filed, &c.; that justice could not be done to the "complainants in said bill without having said inventory, returns, settlement, &c, overhauled in a court of chancery, a reference to a clerk and master, an account taken, &c.
    Said bill prayed also an account of a certain partnership adventure between the said John McGregor, Ransford, and Jacob D. Donelson, with which your present complainants have no concern. Said bill then concluded with particular interrogatories to the said Ransford relative to the matters aforesaid and with a prayer Fora.n account thereof to be taken and for a decree against the said Ransford and his said sureties for whatever balance might be found remaining in his hands. At the March rules, 1840, of said court, said bill was taken pro confesso as to ycmr complainants John E. & Drury, who had failed toi employ counsel to attend to it, upon the representation of said Ransford to complainant Drury that it was wholly unnecessary for them to incur the expense, as the matter would be settled and would be all right; and the complainants being ignorant of law, -were the more easily induced to believe that they were in no danger of incurring responsibility, from the fact that before the filing of said bill they had suggested the insolvency of their intestate, Russell Dance, deceased, in the Chancery Court of the .county where, he was resident at the time of his death, in accordance with the act of the General Assembly of 1837-38, entitled An act to amend an act to regulate the distribution and division of the estates of persons dying insolvent, passed 18th October, 1835, of which fact, R. M. Burton, Esq. complainant and solicitor in the bill sought to be reviewed, was apprised about the time said bill was filed. At the March rules, 1840, of said court, said bill was also taken pro confesso as to co-defendants Levi Wade and John C. Wade. At the February Rules, 1840, the answer of Ransford McGregor was filed; and at the March rules succeeding, the answer of Jacob D. Donelson; to neither of which, replications were filed, as appears from the rule docket. At the July rules, 1841, said cause was set for hearing by complainants, and such steps thereupon taken and such proceedings had, that at the said July term an account was ordered to be taken by the Clerk and Master, of the executorship of the said Ransford, together with the other matters before mentioned, with which your orators have no concern.
    To the succeeding term of said court, (the January term, 1842,) the Clerk and Master reported a balance of four thousand one hundred and eighteen dollars 85 cents as the balance of the assets of said estate remaining in the hands of said Ransford. Whereupon a decree was entered up by the court against the said Ransford for that sum, together with his said co-defendants his sureties, and execution awarded against complainants as administrators of the said Russell Dance, to be satisfied out of the goods and chattels of the said intestate in their hands et si non de bonis propriis. Complainants are advised that execution de bonis propriis' was improperly awarded against them, and could only have been properly awarded after they had had an opportunity of defending themselves upon a sciré facias. Complainants knew nothing of the proceedings against them (after the service of the subpoena) until execution was issued against them. Complainant would further represent, that'the said final decree does not.recite the fact that the said complainants were the children and legatees of the said John McGregor, deceased, in which character only they could claim. Complainants would further represent, that it appears from two bonds of the said Ransford, filed as exhibits to said bill, that their intestate, the said Russell Dance, entered into one'only, (the bond first given, when the said Ransford qualified as executor,) and that afterwards, when one of the sureties, the said John Nelson, was released, and the said John C. Wade substituted in his place, he (the said Wade) gave a separate bond. Complainants would submit, therefore, whether the release of the said John Nelson by order of the County Court, would not be a release to all his co-sureties, unless they entered into a new bond together with the person substituted in his stead.
    Complainants would further represent, that an execution de bonis propriis as aforesaid has issued against them upon said decree; and without the interposition of your honorable court, they are likely to sustain great injury. They charge, that it is inequitable and unconscientious for complainant to seek to satisfy said execution, or any part of it, out of their proper goods, when the estate of their intestate was insolvent, which insolvency had been properly suggested before complainants obtained their decree or had even filed their bill as aforesaid; and they insist that complainants should be placed on a footing with other creditors, either to make their money out of the other sureties, or file their claim for pro rata satisfaction.
    Your orators alledge, that said decree is erroneous, as they believe, and is likely to operate very oppressively upon them; and they pray, therefore, that the same may be reviewed, the errors in law corrected, and your orators permitted to avail themselves of the defence of the suggestion of the insolvency of the estate of their said intestate.
    To this bill there was a demurrer, and joinder in demurrer.
    It was argued before Chancellor JBramlitt, at the July term, 1843. He was of the opinion, that there was no equity in the bill of the complainants, and dismissed it.
    The complainants appealed.
    
      D. M. Currin, for complainants.
    1st. The suggestion of the insolvency of the estate of their intestate by the complainants, in the Chancery Court of Davidson county, in accordance with the act of 1837-38, was a proceeding of which all of the creditors of Russell Dance were bound to take notice. Besides, in this case, Robert M. Burton, the solicitor of all the complainants, and the guardian ad. li-tem and the guardian proper of some of them, had special and personal notice of that fact communicated to him by one of the complainants. It was, therefore, inequitable, and a fraud upon their rights, to take a decree against them de bonis propriis. Moreover, laches is not to be attributed to the complainant in the case, on the ground that they suffered the original bill to be taken pro confcsso as to them; nor failure to plead to be construed into an admission of assets, as in ordinary cases. For no plea which they could have pleaded, with truth, would have effected, in any degree, their rights or their liability. They could not have pleaded no assets, otplena administravit; for they had assets; though they were insufficient and beyond their control, being under the exclusive direction of the Chancery Court, which, by virtue of the suggestion of insolvency, had obtained jurisdiction of the matters connected with the estate, and sue-eeeded to the appropriate rights and duties of an administrator. They could not have pleaded plena administravit preeter; for, until the termination of the chancery proceeding, it could not be ascertained what residue there would be, or what dividend appropriated to each particular debt due from said estate. To have pleaded, formally, that they had suggested the insolvency of the estate, would not have availed them, more than their si* lence; such a plea being unknown to the common law; the administration of insolvent estates by the chancery and county courts being a matter entirely of statutory regulation, and no provision having been made by the statutes for such a plea. Inasmuch, therefore, as it could not have been the object of the statute regulating the administration of insolvent estates, to deprive the administrator or executor of any plea which he had at common law, without affording him adequate protection; and inasmuch as that result would necessarily follow, if it should be established that the suggestion of the insolvency of an"estate must be formally pleaded by an executor or an administrator when sued, it would seem that the filing of a bill suggesting insolvency by an administrator or executor should be regarded as a proceeding in the nature of a proceeding in rem, of which all creditors were bound to take notice; and consequently that the usual injunction granted in such case would operate to prevent any creditor from proceeding against such an estate, otherwise than by filing his claim for a fro rata distribution, and thus having himself made a party to the bill.
    2nd. The pro confesso judgment against the complainants did not imply such an admission of assets as to authorize a decree against them de bonis propriis; for though when an executor or administrator is sued in a court of law, assets are presumed, unless, as a fact, it be put in issue by the pleadings; yet, in a court of equity, assets in his hands must be alledged, and, if denied, or not admitted, must be proved. Evans vs. Inglehart etals. 6 Gill & John. 171; Corneal’s heirs vs. Dey, SLitt. 397; MitcheU vs. Roberts, 2 Dev. Equity, 578; Story’s Equity Pleading, 219; Dawson vs. Clay’s heirs, 1 J. J. Marsh. 167.
    3rd. The decree in the case sought to be reversed was de bonis testatoris, et si non, whereas it should have been de bonis 
      
      testatoris only in the first place, and could only have been de bonis propriis after a scire facias had issued to charge the complainants personally, to which they might have had an opportunity of pleading the want of assets, or making other appropriate defence. Wray vs. Williams, 2 Yerger, 302; Reed Cox vs. William Cox’s adrn’r. 305; Parlcer vs. Stevens, 1 Haywood, 250.
    4th. Said decree does not fully and sufficiently recite the facts upon which it was founded; and for that cause, should be reversed. See Burdine vs. Shelton, 10 Yerger, 41.
    
      H. M. Burton, for the defendants.
    
      Ed. A. Keeble, for complainants.
   Reese, J.

delivered the opinion of the court

This is a bill of review by the complainants, the administrators of Russell Dance, deceased, to reverse a decree obtained .against them in the Chancery Court, by the guardian of the minor heirs of McGregor and others, for error, patent upon the said decree. The error set forth in this bill is, that the complainants were made defendants in their representative character only, as the administrators of Russell Dance, deceased, and not in their individual character; that said bill was taken for confessed against them, and heard ex parte; that in said bill there was no allegation whatever that they had wasted or committed a devastavit of the assets in their hands; that there was no enquiry or report as to the amount of those assets; and yet, that in the final decree it was adjudged that they should pay the amount decreed against them out of the goods and chattels in their hands as administrators, if sufficient, and if not, out of their own proper goods and chattels. And further, that prior to this decree the said complainants, the administrators of Dance, had filed in the Chancery Court their bill suggesting and alledging the insolvency of their said intestate’s estate, pursuant to the act of 1837, of which the complainants in the said original bill had notice. Upon general grounds,- therefore, and upon this latter ground, they alledge that the decree against them individually, de bonis popriis, was erroneous. Of this opinion, and upon both grounds, is this court. Even at law, it has been held for more than twenty years, since the case of Massingill vs. McCorkle, in Haywood’s Reports, that such a judgment is erroneous, and, a fortiori, it will be so held, inequity, where the object of the bill is to obtain a decree against the ^personal representative in that character, and where there is no issue, or contest, as to whether said representative has wasted the assets and subjected himself individually, and where there has been no enquiry, report or decree on the amount of assetsthat c.ame to the hands of the representative, and their proper or improper application, If the effect of the act of 1837, upon the filing of a bill suggesting insolvency be not to suspend eo instanti, and by mere operation of the law and of the act of filing th'e bill, all further progress in suits pending against the personal representative, it at least makes any future decree or judgment against him individually, and de bonis projpriis, er-ronepus. Not to hold so, would be to contravene the very object of the act and the protection intended to be furnished by filing the bill, and the equitable pro rata distribution, which forms its leading policy. That a decree in chancery does not, and in general should not conclude a personal representative as to assets, see the case of Read Cox vs. Win. Cox’s executor, 2 Yerger.

Leave to file this bill of review, and an injunction were obtained from the Chancellor at chambers; and it is said, that according to the course of a court of equity, leave to file the same should have been obtained in open court; and we think there should have been an order to that effect made upon the minutes of the court. But this question does not arise, and cannot be looked into, upon the demurrer. The formal demurrer to,a bill of review is like the plea of in nulio est erratum, in a writ of error at law. It affirms the correctness and validity of the original decree; it places the matter upon that; it raises no such question as the one relating to the leave of the court. If the parties defendant to this bill proposed to place themselves upon that ground, they should not have demurred, but should have moved to take the paper from the files; in 'which case, no doubt, the court would thereupon have granted the leave to file the bill. In pursuing the course they did, the necessary leave was taken for granted, by both parties and by the court, and these complainants should not no'w be turned round here upon such an objection.

Upon the whole, then, we are of opinion, that the decree of the Chancellor on this bill of review should be reversed, and* also so much of his decree in the original suit, as proceeds against these complainants individually de bonis jyropñis: and we order, that the complainants recover their costs in the bill of review from the representatives and heirs of McGregor.  