
    JANUARY TERM, 1846.
    Asahel W. Washburn et al. vs. William Phillips, Administrator, &c.
    The probate courts in this state have no jurisdiction of a bill of review.
    A settlement of his account by an administrator, made without giving the notice prescribed by the statute, is void.
    Disbursements made by an administrator for the board and maintenance of the infant distributees, are not proper charges in his account against the estate.
    On appeal from the probate court of Yazoo county, Hon. Thomas B. Woodward, judge.
    This was a bill, filed in the probate court of Yazoo county, by A. W. Washburn and his wife Leanora, Joseph Martin and Adaline Martin, infants, by their guardian, Washington Dorsey, and William E. Pugh, administrator of Rhoda Martin, the only heirs and distributees of the intestate, John Martin, against William Phillips, administrator de bonis non of John Martin, praying the court to review and reverse the several settlements made by Phillips with the probate court of Yazoo county, and to correct the errors in said settlements, and for general relief. The bill shows that the intestate, John Martin, died in the year 1832, seized and possessed of a large estate, both real and personal. That at the April term, 1838, of said court, letters of administration de bonis non were granted to the said Phillips, who took into his possession the personal estate, and entered upon the real estate of the said intestate, worked the negroes and cultivated the lands, from year to year, until 1841, without any order or decree of the court authorizing him so to do, and without accounting with the court for the .rent of said lands, or the hire of the negroes. The bill states, that at the April term, 1840, Phillips made a settlement with the court, in which there are various charges allowed against the estate, of debts contracted by himself. That on the 26th of October, 1840, Phillips made another settlement with the court, in which he was allowed charges against the estate to the amount of $2509 4.4; and that on the 22d of February, 1841, made a final settlement, in which the court allowed him charges against the estate, amounting to $3887 88; and that at the September term, 1841, Phillips made application to open his settlement of 22d February, 1841, which was granted, and further charges, to the amount of $406, were allowed, and a decree entered against the estate for the amount on the several settlements. The bill charges that none of the debts allowed in these various settlements, were debts contracted by the intestate, but were all debts contracted by Phillips, and those who preceded him in the administration. Copies of all these settlements are filed with and made a part of the bill. The bill also states that on the 22d of February, 1841, Leanora, one of the complainants, was, is now, and has ever since been, a feme covert: that the complainants, Joseph and Adaline, are now minors, and that Rhoda, the other heir and distributee, was of .full age, but died intestate, in April or May, 1842, and that letters of administration on her estate were granted to the complainant Pugh, in 1843. The bill charges fraud upon the defendant, Phillips, in his various settlements, and that the complainants had no notice of them. The bill then prays for a reversal of the decrees made upon the several settlements, and a review of all of the actings and doings of Phillips, as administrator, and that he may be compelled to account for the rent of the lands and the hire of the negroes, belonging to the estate, and for relief generally.
    The defendant demurred to the bill, and assigned for causes of demurrer,
    First. That the complainants have not, by their bill or petition, made such a case as enables them to review the former order or decree of this court, or entitles them to the relief prayed for.
    Secondly. That a bill or petition to review an annual settlement, or former order or decree of this court, does not lie.
    
      Thirdly. That there is no such error apparent upon the face of the previous decrees or orders of this court as will entitle complainants to the relief prayed for.
    Fourth. That the said bill, or petition of review, was not filed within the time prescribed by law.
    Fifthly. That all the heirs and distributees of John Martin, ought to be parties complainants.
    Upon argument the court sustained the demurrer, and dismissed the bill. From which judgment the complainants appealed to this court.
    
      William E. Pugh, for appellants.
    To the first cause óf error assigned, I answer, that in granting bills of review, the whole record is to be looked into, and not the decree only. If the bill alleges errors to exist in the record, sufficient upon which to sustain the bill, the truth or falsehood of the allegations of the bill cannot be shown on demurrer (for the demurrer confesses all the allegations of the bill,) but must be determined upon the trial of the cause, upon its merits. Ludlow v. Kidd, 2 Ham. 381 ; Blight v. Mcllvoy, 4 Mur. 146; Breioer v. Bowman, 3 J. J. Marsh. 492; Story’s Bquity, 323; Whiting v. Bank of United States, 13 Peters. 6, 13, 14.
    In answer to the second cause of demurrer, denying the power of the probate court to review a former decree of that court, I flatter myself that I have only to refer the court to the various declarations of this court, admitting that power. Among which are the case of Gildart’s Heirs v. Stark, 2 How. R. 450 ; Blanton v. King, Ibid. 856 ; Carmichael v. BrowderT 3 Ibid. 252.
    The third cause of demurrer assigned, “ that there is no such error apparent upon the previous decrees, or orders of this court as will entitle the complainants to relief,” &c., is in substance the same, or nearly so, with the first. If, for an administrator to take into his possession the personal estate of his intestate, and enter upon the lands, to the heirs descended, and so use them as his own, or by color of the power given him by his letters of administration, to carry on the trade of his intestate, from year to year, and to contract debts, ad libitum, without the sanction of the court, to present and get allowed as legal liabilities of the estate such debts so contracted, and not to account either for the hire of the negroes, or rent of the land of the intestate in his hands, do not constitute facts and errors sufficient upon which to found a bill of review, then I confess this cause of demurrer is good. All these things are alleged in the bill, and are sustained by the record. It is true, the law of this state permits an administrator to complete the crop growing at the death of his intestate, upon his showing to the court it would be to the advantage of the estate so to do, and by first obtaining an order to that effect; but the law does not even permit the court to make an order for him to go farther than the crop growing at the death of the intestate. H. & H. 402. It never could have been intended by the legislature, in the passage of this statute, to vest in administrators power to prosecute, at their own will, and from year to year, the trade of their intestates, and to keep the estates of their intestates unsettled for years, to sub-serve their own private ends, and to charge them with all debts, for aught the court can know, wantonly and prodigally contracted, in doing an unlawful act. To construe the statute thus, would be to place every estate at the discretion, knowledge and honesty of the administrator, without any means by which' to check and control maladministration. But the law is well settled, that if an administrator carries on the trade of his intestate he must do it in his individual character, not in his representative. Barker v. Parker, 1 Term R. 295; Whitman v. Townroe, 1 M. & S. 412. Neither can he contract debts in his representative character, and thereby bind the estate of his intestate. 6 Mass. R. 18; 8 Ibid. 199.
    
      George iS. Yerger, for appellees.
    This was a bill of review, filed in the probate court of Yazoo county, to which there was a demurrer. Several questions are presented by the demurrer; but as the question has been settled, and is decisive of the case, it is unnecessary to advert to the others.
    This court has settled the question, that a bill of review will not lie in the probate court. Harris et al. v. Administrator of Brown, 5 S. & M. 74; Farmers and Merchants Bank of Memphis v. Tappan, Ibid. 128.
   Mr. Justice Clayton

delivered the opinion of the court.

This was a bill or petition of review, filed in the probate court of Yazoo county, to review and reverse a settlement of his accounts, which the administrator had made at a previous term. It alleges that the settlement was made without notice to the complainants, either express or constructive. The defendant filed a demurrer, which was sustained, and the bill dismissed.

It has already been decided, that a bill of review will not lie in the probate court.

A settlement made without notice, as prescribed by the statute, would be void. The demurrer admits this charge in the bill. But it would be a solecism to review a void settlement, with a view to correct it; to treat it as something in existence for some purposes, and as a nonentity for others. By a proper original proceeding, if the former settlement be void, for want of notice, the account might be restated, and a new settlement had. But a bill of review is not the remedy, especially as the probate court cannot entertain jurisdiction of such a mode of proceeding.

Some of the items in the account, as stated in the bill of review, those, for instance, which are charged by the administrator, for board and maintenance of the infant distributees, do not pertain to an administration account. They may be proper charges by a guardian against his ward, but if such disbursements be made by an administrator, they cannot enter into his account against the estate. Green v. Green, 3 S. & M. 526; Jones v. Coon et al. 5 S. & M.

Even then, if the notice were given, the settlement could not conclude the petitioners as to these items, because beyond the jurisdiction of the court, and its order to that extent is void. These may, therefore, be investigated in some other shape.

The order of the court below must be affirmed, and the bill dismissed without prejudice.

Judgment affirmed.  