
    *Moores v. White & als.
    July Term, 1846,
    Richmond.
    (Absent Uardwin, J.)
    Chancery Jurisdiction — Distribution of Decedent’s Estate-Suit by Creditor of Absent Distributee. — A creditor of an absent debtor, who is one of the heirs and distributees of a deceased intestate in Virginia, may go into a Court of Equity, for the purpose of having a division and distribution of the estate of the decedent, and of procuring payment of his debt, out of the share of the absent debtor, in the said estate.
    In 1833, Matthew White filed his bill in the Superior Court of Augusta county against Jacob Moore as an absent defendant, and James J. Moore as the' administrator of Isaac Moore deceased, and the other heirs and distributees of Isaac Moore, in which he charged, that Jacob Moore was indebted to him in four several sums of money; and that he had removed from the State of Virginia. That his father Isaac Moore had departed this life intestate, leaving a large real and personal estate, of which the said Jacob was entitled to a part as heir and distributee. He therefore prayed that James J.Moore the administrator of Isaac Moore, might be compelled to settle his accounts as administrator of Isaac Moore, and that his debts might be satisfied out of Jacob Mpore’s portion of the estate.
    The administrator and heirs answered the bill, and insisted that Jaocb Moore had received from his father in his lifetime his full share of his father’s estate; and they relied upon a receipt given by the said Jacob to Isaac Moore. This receipt bears date December 30th, 1830, and says, “Settled and received this day in full of my father Isaac Moore, the full amount of my portion of legacy from him, including all former receipts and settlements. And I hereby renounce all claim *against him forever. Witness my hand and seal the day and date above written.
    Signed,
    Jacob Moore, [Seal].’’
    The execution of this paper was proved by the attesting witnesses; and they also proved that at the time of its execution several receipts which Isaac Moore held for money advanced to his son Jacob, were destroyed.
    The cause came on to be heard in November 1836, when the Court held, that the receipt relied upon by the defendants did not operate as a disherison by the father, or a release by the son; nor was it conclusive evidence of a full advancement at the period of its date: but that it might be relied on as evidence of a full advancement at that time, unless rebutted and explained by other evidence. The Court therefore, referred the cause to a commissioner of the Court, to settle the administration account of James J. Moore, and also state an account of the advancements made by Isaac Moore to all or any of his children, and heirs at law, and the distributive share of each in the personal estate, and the share of each in the land.
    The commissioner made a report which, upon the supposition that the receipt of Jacob Moore was not evidence of full advancement to him by his father, charged him with 400 dollars, proved to have been. received by him; and shewed him entitled from both the real and personal estate to 1545 dollars 4234 cents, with interest on 1344 dollars 1234 cents, from the 9th of January 1838, until paid; and shewed him indebted to Matthew White in the sum of 914 dollars 3% cents, with interest on 56 dollars 97% cents, from the same date. The evidence taken before the commissioner proved that there had been other advancements to Jacob Moore, but as no amount could be specified, they were omitted by the commissioner.
    *On the 8th of February 1838, the cause came on again to be heard, when the Court confirmed the report, and made a decree in favour of White against Jacob Moore for the amount reported by the commissioner. And, upon the seeming admission that the proceeds of the whole estate, real and personal, were in the hands of the administrator James J. Moore, the decree directed that he should pay to White the amount due to him from Jacob Moore. And the cause was retained for a settlement of accounts between the administrator and the distributees of Isaac Moore; with liberty to them, to prove if they could, that Jacob Moore had received farther advancements.
    Under this decree the cause was again referred to the commissioner to settle the accounts between the administrator and distributees; and it was proved that Jacob Moore had received additional advancements from his father to the amount of 16 dollars. It also appeared, that by an agreement between the other heirs and distributees of Isaac Moore, the land and slaves of the estate had been sold by Archibald Stuart; and the proceeds thereof, which had been collected, had gone directly into the hands of these parties.
    In June 1839, James J. Moore, the administrator of Isaac Moore, filed a 'bill of review, to set aside the decree of the 8th of February 1838, on the ground that the receipt of Jacob Moore excluded him from any share of the estate of his father, and therefore the decree was erroneous on its face; and also on the ground, that since that decree evidence had been discovered which proved that Jacob Moore had received additional advancements to the amount of 1600 dollars, which would be more than his whole share of the estate; and that the administrator had been directed to pay the plaintiff’s claim, when in fact the proceeds of the lands and slaves had never come to his hands; and the distributive share of Jacob Moore in the personal estate in the hands of the ^administrator, was far less than the amount decreed to the plaintiff.
    White answered the bill, not admitting there was error in the decree, and denying that the facts relied on for a review and reversal thereof, came to the knowledge of the plaintiff after the decree.
    The cause came on to be heard again on the 24th of June 1840, when the Court was of opinion that there was no error in the principles of the decree of the 8th of February 1838, except so far as it directed that the administrator James J. Moore should pay to the plaintiff White the amount of his claim against Jacob Moore. The Court therefore, rescinding so much of the decree as directed the administrator James J. Moore to pay to the plaintiff White the amount of his decree, overruled the application to review and reverse said decree in other respects; and dismissed the bill at the costs of the administrator. And then with the consent of the plaintiff and the defendants, the decree of the 8th of February 1838, was set aside as improvidently made.
    In November 1842 the report of the commissioner was recommitted; and he made another report stating the accounts of the heirs and distributees of Isaac Moore. In this account he charged Jacob Moore with the sum of 400 dollars as advanced to him, but omitted the sum of 1600 dollars. And he stated the amount due him from the personal estate in the hands of the administrator at 339 dollars 4% cents, on the 24th of June 1843; and the amount due him from the land and slaves at 1387 dollars 2% cents, making together the sum of 1726 dollars 7% cents, with interest thereon, from the 24th of June 1843, till paid.
    On the 15th of June 1843, the cause came on to be finally heard, when the Court made a decree confirming the commissioner’s report, and directing the several persons having in their hands the proceeds of the estate, to pay the amount due from them respectively, to Nicholas *C. Kinney as the receiver of the Court; and directing Kinney, when the same should be received by him, to pay it out to the parties ascertained by the report to be entitled thereto. And directing him to pay to the plaintiff White, out of the distributive share of Jacob Moore, the amount of his debt, principal and interest, as ascertained by the first report of the commissioner.
    From this decree the administrator James J. Moore and the other heirs of Isaac Moore, except Jacob Moore, applied to this Court for an appeal, which was allowed.
    J. B. Baldwin, for the appellant.
    Stuart, for the appellee.
    
      
      He had been counsel in the cause.
    
    
      
      See monographic note on “Jurisdiction’' appended to Phippen v. Durham, 8 (Pratt. 457.
    
   CABEEE, P.,

delivered the opinion of the Court.

The Court is of opinion, that it is competent to a creditor of an absent debtor, who is one of the heirs and distributees of a deceased intestate in this Commonwealth, to go into a Court of Equity, for the purpose of having a division and distribution of the estate of the decedent, and of procuring payment of his debt, out of the share of the absent debtor, in the said estate.

The Court is farther of opinion, that in the settlement and division of the estate of Isaac Moore deceased, the absent defendant Jacob Moore, one of the heirs and distribu-tees of the said Isaac, was properly chargeable with the sum of 1600 dollars, as having-been advanced to him by his father the said Isaac, in his lifetime, in addition to the sum of 400 dollars, with which he was charged b3’ the Court below, as having been so advanced, and that the said Court erred in not charging him with the said sum of 1600 dollars, in addition to the said sum of 400 dollars.

The Court is farther of opinion, that although the decree of the 24th of June 1840, on the bill of review, correctly rescinded so much of the original decree, as directed *'James J. Moore, administrator of Isaac Moore, deceased, to pay to the plaintiff White, the amount of his demand, yet it was erroneous to do so, at the costs of the said James J. Moore. On the contrary, having been compelled to resort to the bill of review for the purpose of relieving himself from the error of the original decree, he ought to have recovered his costs.

So much of the said decree of the 24th of June 1840, and of the final decree, as is in conflict with the principles above declared, is therefore reversed; and the cause is remanded to be farther proceeded in to a final decree, pursuant to those principles.  