
    Thomas E. Robins, William S. Bodley, and William C. Walker, the assignees of the Commercial and Railroad Bank of Vicksburg, vs. Frederick Norcum and Armistead Burwell, administrators de bonis non of Alexander McNeill, deceased.
    An administrator has no right or power to file a petition in the probate court to obtain directions from the court as to the mode of administering the estate.
    M. died indebted to a bank, whose notes were greatly depreciated ; M.’s estate was declared insolvent, and commissioners appoined* thereon ; the bank to which M. was in his life time indebted, had made a general assignment of its effects to assignees ; M.’s administrators, pending the commission of insolvency, filed a petition in the probate court, impleading the assignees, impeaching the assignment as fraudulent, and praying that the assignees might be compelled to receive their distributive share in the notes of t^ie bank j Held . that the probate court had no jurisdiction of such a petition.'
    Where an insolvent estate is indebted to a bank, whose notes are below par, and the administrator seeks to pay the debt in the notes of the bank, a mode of reaching the object, is to except to the report of the commissioners of insolvency, and have the claim of the bank referred to referees, to whose report the exception, raising the point, might be taken.
    Another mode of attaining the same end would be, for the administrator to have required a suit at law upon such claim, and frame the pleadings therein, so as to reach the point at issue.
    Whether such an end could be attained by the administrator permitting himself to be sued on his bond for a devastavit, and making a set-off to the debt due to the bank, of its own notes ? Quere ?
    
    On appeal from the probate court of Warren county.
    The appellees filed a petition in the probate court, in substance as follows:
    They stated that they were the administrators de bonis non with the will annexed, of .Alexander McNeill, deceased; that they had reported his estate insolvent; that they were in the possession of funds of the estate which they desired to distribute ; that other funds would also come to their hands for that purpose; that their testator died largely indebted to various banks and to private persons, all of whom were interested in the distribution; that the president, directors, and company of the Commercial and Railroad Bank of Vicksburg, were large creditors of the estate; and that the appellants, styling themselves assignees of that bank, had proved their claim before the commissioners of insolvency, who had been appointed upon the estate; that the issues of this bank were greatly depreciated and constantly fluctuating; that these assignees, in violation of the act of 1840, requiring all banks to receive their own notes in payment of debts due to them, refused to receive the notes of the bank of which they were assignees, but demanded gold and silver for their pro rata share.
    The petition further set out that the bank had made deeds of assignment, which it exhibited, under which these assignees claimed to be exempted from the provisions of the act of 1840, which was passed and approved subsequent to the assignment by the bank to them. [These deeds are not further here noticed because their validity was not passed upon by the court.] The petition charged them to be void because made to avoid the act of the legislature and to defeat the policy of the law in relation to such institutions, and for the reasons apparent upon the face of the deeds themselves.
    They pray, therefore, that the return of the commissioners of insolvency may be so amended as to report the debt as due to the bank and not to the assignees ; that the notes of the bank, being worth not more than twenty cents in the dollar, it would be for the interest of the creditors to buy with the funds of the estate enough of the issues to pay oif the entire debt. That if the pro rata portion due on the debt be paid in good money, the assignees would receive double the sum actually due the bank and the other creditors a diminished dividend; they pray,, therefore, for the purpose of avoiding expense and litigation, and to do justice to all the creditors and to protect themselves, that the assignees may be made parties to the petition, the deed of the assignment be declared void, and the petitioners be permitted to buy with the funds of the estate in their hands the issues of the bank, and pay therewith the distributive portion claimed by and due to the assignees.
    It is not necessary, in view of the decision of the case by the appellate court, to notice the answer of the assignees farther than to state that they appeared and answered the petition and contended for their right to receive par money in payment of their claim.
    The probate court sustained the petition and decreed accordingly ; from which the assignees appealed.
    
      Montgomery and Boyd, for appellants.
    The estate of McNeill has been reported insolvent. A large claim in favor of the assignees of the Commercial and Railroad Bank of Yicksburg, has been proved and allowed by the commissioners of insolvency. The administrators, in their petition to the probate court, show, in substance, that the whole real and personal estate of the decedent has been sold, and the proceeds, in part, received by them, in gold and silver; the remainder, existing in the form of notes, given at the administration sales, and not yet due. They exhibit the amount so held by them as ready for distribution, and state that the assignees of the Commercial Bank claim a proportionate share with other creditors, of this fund, although the notes of the bank are greatly depreciated. They ask the order and direction of the court, whether the assignees of the bank .Shall be paid pro rata with the other creditors, or whether their claim shall be reduced to the cash value of their circulation, and their distribution be based on that calculation. Before examining the question, it appears necessary to premise these two points, which must be kept in view, in order to a full understanding of the subject.
    First; the fund which the administrators exhibit, consists of the proceeds of the sales of the estate in their hands, as administrators, and this fund, being “ the residue and remainder of the estate, both real and personal,” is the identical thing “ to be paid and distributed to and among creditors.” H. & H. 410.
    Second; that the administrators have not in hand any of the notes or circulation of the Railroad Bank,
    The precise attitude of the question then, is this. Can the administrators who hold for distribution, the money arising from the course of their administration of the estate, be authorized or compelled to apply this money to the purchase in of offsets against the claims of creditors, which have been allowed by commissioners ? Or, in other words, can they be compelled to do anything else, with the “ residue and remainder of the estate,” but “ to pay and distribute it to and among the creditors who shall have made out their claims with the commissioners as aforesaid, in proportion to the sums unto them respectively due and owing?”
    We shall take it for granted, that if the probate court cannot compel them to do this, they cannot authorize them to pursue such a course. The question is not what are the wishes and inclinations of the administrators, but what are their duties, and what the power of the cotrrt. If the thing proposed is a duty, then the court can compel the performance of it; if it is not a duty, the court cannot atithorize it to be done. We maintain there are no such duties, and no such power. The administrator is a statutory trustee. The power of the probate court over him, is to compel him to discharge” the duties of his trust, as laid down in the statute. The estate is not placed in his hands to be managed at his discretion, nor, in fact, to be managed at all, except for purposes of distribution. He cannot contract a debt, after the death of his intestate, so as to bind the estate, except in due course of administration. He is to collect together all the assets, and ascertain the liabilities. After which, he is to discharge those liabilities, and distribute the remainder to those entitled by law. He has no authority to speculate with the funds in his hands, with a view to benefit the estate. That power has been most wisely withheld from him. Looking then to the law, which declares the trust duty of an administrator, we ask, where is the authority given to purchase offsets, or deal in paper securities ? And this question applies with equal force to the case of a solvent, as an insolvent estate. The right of offset exists in favor of an administrator, but this right does not give him the power to purchase a claim or offset. In the case of an insolvent estate, the allowance by the commissioners settles the actual amount due. It is a final decision, unless appealed from. And their allowance must be the basis of a distribution.
    The power to purchase an offset, is wholly distinct from the right to make the offset. No one will contend that an administrator can purchase an offset, against the claim of an ordinary creditor. The contrary is too well settled to admit of question. 2 Paige, 402; 21 Wend. 674.
    It is however suggested that the act of 1887 gives the right, which the probate laws did not confer. In construing that act, (H. & H. 218) we must bear in mind the principles , before alluded to. That act relates to what the banks, who had issued post notes, might be compelled to do for their redemption. The 12th section appears, almost in terms, to exclude the idea, that an administrator, who might even be the holder of these post notes, could use them by way of offset. The 16th section evidently relates to claims not reduced to judgment, but which remain payable' at the counter of the bank, and would not extend to the case of a judgment, or allowance by commissioners of insolvency. But this is not the whole force of the objection in the present case. We are not inquiring what the bank might be compelled to do, if it were shown she had issued post notes, but rather what new powers have been given to an administrator, if any, by the act in question. We think his powers are not affected by it; and as the petition shows clearly that the administrators of McNeill have no such post notes in hand, the court cannot authorize or compel them to go into the market, and buy them for distribution. Again : If the administrators of McNeill, even under an order of court, use the funds of the estate in the purchase of bank notes, we insist the act amounts to a conversion of the assets, and the notes purchased become their own property, and not the property of the estate. This point is illustrated by the case in 21 Wendell, and is clear in principle. Having then acquired the legal title, or individual ownership of the post notes, the principle of offset cannot apply. And if, with these post notes, the administrators are allowed to pay the claim due from the estate to the bank, the act would amount to a purchase of the claim of theybank, which would thereafter be held to their own use. They would in that way become creditors of the estate, and under the section regulating the distribution, before referred to, would be entitled individually to a pro rata division of the “residue and remainder of the estate,” equally with other creditors. The transaction -would amount to a purchase of the claim held by the bank; it would then, at once, become their individual property, and they would hold it as a claim against the estate, like the claim of any other creditor. This cannot be a correct view of the rights and duties of an administrator under our laws. It by no means follows, that because the intestate might have made the purchase of these post notes in his lifetime, at any period prior to a satisfaction of judgment, therefore, the administrator can do the same thing. To illustrate this point: the intestate has the right to obtain offsets against the claims of individuals, to whom he was indebted, but after his death this right does not continue in favor of an administrator. Because the administrator only represents the intestate, so far as the law directs, and his acts beyond the direction of law, are his individual acts, and do not bind the estate. Now, if the right of the decedent had been extended, in individual cases, so as to allow him to acquire offsets, at any time before satisfaction of judgment, this right would not go to his administrators without express words, for the reason that the law has given an administrator no power over the funds in his hands, but to pay debts, legacies and distributive shares. It has given no power of speculation. Indeed, it would be most hazardous, to allow him this power. He would be allowed to judge when and at what rates he should purchase; and he would, on his settlements, be allowed the market value of paper purchased, at whatever time he might think fit to charge it in account. And there is no probability of ascertaining when he did actually purchase, nor what price he actually paid. It is easy to see the great danger and hazard in thé exercise of this power.
    But we rely on the fact that the claim against McNeill’s estate has been assigned by the bank, and that at the date of the assignment, no offset Was held by McNeill. In such a case the act of 1837 does not apply ; and the acts of 1840 and 1842, being subsequent to the assignment, have no effect. The general law of offsets of course has no application.
    The cases relied upon on the other side, have no bearing on the points suggested in this case. No such question was raised or decided in 3 Munf. 288, or 2 Call, 95. In 3 Dana, 260 — 270, the administrator had made his administration sales, to be paid in commonwealth paper, which was worth fifty cents in the dollar. Afterwards he had purchased some of these claims, and used them for his own purposes, and the question raised was, whether he was to account to the estate for specie, or the commonwealth paper and interest. The last was decided to be the correct charge, as such had been the terms of sale. No such point arises in the present case.
    The cases in 2 Call, 190, and 4 Call, 405, have an entirely different bearing. They relate to the administration of estates under the old laws of 'Virginia, where a scale, or rate of value, was established by law, between paper currency and specie. That has nothing to do with the principles here in.controversy. No case can be found, which will go to the extent of prohibiting an insolvent individual or estate, from collecting debts in specie from those who do not hold offsets in hand against them. Where the offset is held, it may be used; but the mere fact of insolvency does not deprive a creditor from demanding legal and constitutional currency against all his debtors, who have no counter claims. We maintain, further, that no final distribution of an insolvent estate could ever be made, on the principle contended for by the other side. There would always be a fraction to divide again among the creditors ; this fraction would consist of the difference between specie and the apparent value of the bank notes, and in the distribution of this fraction the insolvent bank would be entitled to its share. Reducing that share to specie, you have still a fraction, in which the bank is again entitled to share, and so on till the end of time. Nor can you ever get to a point where this fraction will be wholly absorbed ; so that the estate will always remain, in part, undistributed, unless you can- solve the problem which has puzzled philosophers for ages, whether there can be a particle of matter so small, as to admit of no division.
    It has been insisted, that the statutes referred to are intended to make bank paper a tender, in payment of debts due to banks after judgment. This position cannot be maintained. It is not in the power of the legislature to make anything but gold and silver a good tender, by way of payment, either before or after judgment. It is, however, within the scope of legislation to prescribe the manner and mode of settlement of mutual demands, so long as they remain in fieri, and exist in remedy.
    This is the view which always governs the distinction between a payment and an offset. Whatever .is good as a payment, is good without reference to any statute. It is the satisfaction of a claim in kind, and according to contract.
    But offsets are nothing more than mutual settlements of debts, or counter demands.
    The law of offset gives to the person holding it a shorter remedy than a cross action.
    A payment actually made, is always a satisfaction of the claim, in whatever hands it may afterwards come. But an offset may be held any length of time, and not amount to a satisfaction, if the claim against which it is held is subsequently assigned. Statutes, however, can extend this right, as to the point of time when it is to be exercised or claimed. By our old laws it was so extended, down to notice of the assignment of the original or principal debt. - And by the statutes of 1837 and 1840, as to banks, it has been further extended down to the time of the actual satisfaction of a judgment. We believe this to be the only exposition of these laws consistent with the constitution; and we think we have, before shown, that they do not extend to the case of an administration 'of an insolvent estate, nor in any way increase the powers or duties of an administrator.
    As to the constitutionality of a law, compelling an assignee to receive bank notes, in satisfaction of a demand against the bank, held by him prior to the passage of the law, we refer to Judge McLean’s decision, reported in the October No. 1844, of the Western Law Journal, p. 27.
    
      George »S'. Yerger, for appellants.
    1. On the question of the power of the bank to make an assignment of its effects, for the benefit of its creditors, cited,
    6 Gill & Johns. R. 205; lb. 363; 6 Conn. R. 233; 8 lb. 505; 5 Pet. R. 651; 1 Watts R. 385; 2 Stew. R. 401; Case of Real Estate Bank of Arkansas, decided by the supreme court of that state, in pamphlet; 6 Gill & Johns. 218 ; 3 Maulé & Sel. 371; 1 Bin. 516 — 523; 4 Mason R. 211, 212; Brashear y. West, 7 Pet. R. 608.
    2. Upon the effect, character and requisites of the assignment, cited the following authorities: 2 Paige R. 490; 16 Pet. R. 217; 9 Pick. R. 410; 6 Gill & Johns. 366 ; 4 Bibb, 289 ; 4 Mason, 206 — 218; 2 Sumner R. 278 ; 4 Pet. Con. R. 684; 5 Wheat. 359; 4 Com. Dig. (Am. ed.) 154, Faite E. 4; lb. tit. Grant, E. 1, 2, 3; Jackson v. Delancey, 13 Johns. R. 537; 13 Serg. & Rawle, 210, 211; 1 Rice R. 383; 3 Paige, 45; 22 Am. Jur. Jan. 1840, p. 434; 2 Dev. &Bat. 451; 10 Pet. R. 360 ; 7 Paige, 568; 3 Cranch, 11; 2 Johns. Ch. R. 565; 2 Conn. R. 633; 13 Ibid. 382; 11 Wend. 240 ; 7 Maine R. 49; 5 Wend. R.--;■ I Bin. 502; lb. 515; lb. 523; 17 Serg. & Rawle, 251; 3 Missou. R. 252; 2 Stu. R. 86; 8 Pick! 65; 6 Gill & Johns. 364, 365; 4 Wash. 237; 11 Wend. 202 ; 15 Johns. R. 571; 4 Mason, 221 ; II Wend: 209; 2 Paige, 490; 4 Masón, 225; 4 Raw. R. 207; 10 Pet. R. 360; 15 Johns. R. 571; 2 Johns. Ch. R. 2; 6 Gill & Johns. 230; 13 Serg. & Rawle, 210; Robins v. Embry, 1S. & M. Ch. R. 207.
    
      Eustis, for appellees.
    An administrator is a trustee for the creditors of an estate. Haysthorp v. Hooks, adm’rs, 1 Gill & Johns. 270; Lawrason v. Davenport, 2 Call, 95; 1 Beal, 128; 3 Dana, 260. It is his duty to collect and administer the assets “ to the best advantage of the estate.” He may not hazard the assets in adventures, with a view to increase the fund, but, within the limits fixed and ascertained by statute law, it is his duty to make the fund go as far as possible towards the extinguishment of the whole debts due from the estate. If the estate were solvent, would it not be doing injustice to distributees, to pay banks in coin debts which might lawfully be discharged in their depreciated paper? Upon what principle can the fact of insolvency vary the power or duty of the administrator to exercise such a right, if it exist ?
    Counsel refer to the statute in relation' to insolvent estates. Its subject-matter is the distribution of money only. What inference can be drawn from that fact, against the right of the administrator to avail himself of the law in relation to banks ? If the administrator held the note of a private person, which note had been given for property purchased at the administration sale, would not that note be available in discharge of the dividend to that individual? Yet that is not distributing money; and yet the party thereby receives “ the sum unto him due and owing” in the language of the statute, as fully as he that is paid in coin.
    The statutes have given the right to purchase such set-off, and while the law stands, we can see nothing in the character of an administrator of an insolvent estate, which should exclude him from exercising that right. The question is, not how far the court may go in imposirig duties upon the administrator. The administrator is willing to undertake the burthen; and the question therefore is resolved into this — whether or not the banks are to be compelled to take the dividend in their own paper.
    We shall first consider the case of the assignees of the Railroad Bank, without attacking their deed of assignment, that being the special province of other counsel in this cause.
    In the Union Bank of Tennessee v. Ellicott, 6 Gill & Johns. 363, and Bank of Maryland,, v. Ruff, 7 Ibid. 467, there were deeds of trust for the benefit of creditors. The court decided that the debtors should be allowed to pay in the bank paper; and in the latter case it is stated that such has been the decision of the supreme court of the United States.
    If it be said that these decisions result from previous legislation in Maryland in relation to banks, we call the attention of the court to an act of our legislature, passed in the year 1837, which was in force at and before the date of the deed of assignment in the case at bar. Section 16 of the act (How. & Hutch. 218,) reads: “Every bank issuing post notes, as aforesaid, shall be compelled to receive the same for any debt to said bank being bona fide the property of said bank, or its branches, and payable at its counter or elsewhere, whether such post notes have run to maturity or not; and such post notes shall in like manner be received by the several branches of the banks which may issue the same.” Now it appears from th_e record, that the Commercial and Railroad Bank of Yicksburg had, previously to this assignment, brought themselves, by issuing post notes, within the purview and meaning of this statute. There is no question about this act having a retrospective operation in the present case, for the claims now held by the assignees are in date subsequent to the act. But the instant the contracts were made by McNeill with the bank the statute attached, and in the language of Judge Washington, in Ogden v. Saunders, it became part of the contract. “The municipal law of the state is the law of the contract, forms part of the contract, and travels with it wherever the parties to it may be found.” 12 Wheat. 259.
    It was in the election of the bank whether or not the provisions of this statute should ever be applicable to any contract with them. By the issue of post notes they made their election. The equity attached and travelled with the claims into the hands of these assignees; and now the same question under the same circumstances, is made here, that was made in the cases in Gill & Johnson. The decision must be the same. The assignees took the paper of McNeill, which, by the laws of the land, is payable in the bank paper. They must receive that paper.
    We altogether deny that these assignees are entitled to fix and defend their claim upon the principles of commercial law which apply'to ordinary cases of bona fide assignment; cases where not only the title to, but some beneficiary interest in, the thing is assigned. Nothing was paid to the bank, nor any debt of the bank extinguished, as a consideration for the assignment of these bills receivable. Had a creditor taken them from the bank in payment of a debt, it might be considered unjust to require him to take a post note of the bank, which is but another debt of the bank, for them. But the fact is, these assignees are the mere agents or substitutes of the bank, for the purpose ’of protecting a title which would have been liable to seizure. The credits of the bank are hypothecated with them, and for what purpose ! One of the principal objects or trusts is to extinguish these very debts of the bank, now outstanding in the shape of bank notes. The court must presume, in the absence of proof to the contrary, that each creditor is to be fully paid; in other words, that all these bank notes are to be paid. It will then amount to this; the very sum paid in, one day in specie, is to be distributed on another day in the payment of the bank notes. If it is a trust to pay these bank notes, how does it conflict with that trust to take those bank notes in payment! Does it operate any injustice upon the other beneficiaries under the deed ! Not at all; for they have the same right — to buy the paper, and pay a debt of the bank — and the only difference between them and the estate would then be, that the estate, besides the misfortune of holding the bank paper, has the misfortune to be indebted to the bank. The beneficiaries then have really no ground of complaint, and the assignees cannot sustain the objection on their behalf, and the instant they urge it on behalf of the bank, they are estopped by the statute we have recited. Yet the objection can only be made on behalf of one or the other of these two parties, and in no case on their own behalf. They hold the naked fee, and must be viewed in this court as having no interest for themselves in the product or result.
    It will further be seen, by reference to the terms and provisions of the deed of trust, that the grantors have provided, that all persons who shall come forward within a certain time, are to have this very privilege of paying in the bank paper. Now although we contend that this show of generosity is mere surplusage, a mere volunteering to do that which the law will compel to be done, and not all of that, we make this point —■ that the death of the original debtor,’ and the legal incapacity of the administrator to renew, excepts this estate from liability to suffer as those may who make default. Further time is always given in such cases; and where the -administrator has not the power by law to do the act demanded of him, of course no penalty can therefore he visited upon those whom he represents. Courts recognize the fact, that men must die; and, therefore do not make the decease of a party a ground of punishment upon his heirs.
    Having considered, therefore, the kind of assignees these are, and the provisions contained in the deed, we can see no reason why these assignees .should occupy a more favorable position in the present case, -than any bank in this state. They must 'all take their paper, if they have brought themselves within the act, by the issue of post notes ; and we contend that this should be the rule, although the contract constituting the claim was in existence before, the act passed, although such operation of the law may be retrospective, and for this reason — that the law would never have impaired the obligation of such contract, but for the will, consent, and voluntary act of the party holding it.
    
      Norcum and Burwell, for appellees,
    cited and relied on the following authorities: Bank of Maryland v. Buffi 7 Gill & Johns. 448. How. & Hutch. Dig. 218, sec. 12, 13, and 14. Pamph. Acts^ of 1840, p. 13 -— 17, sec. 13. Ogden v. Saunders, 12 Wheat. 259.
   Mr. Justice Clayton

delivered the opinion of the court.

The appellees, as the administrators of Alexander McNeill, deceased, reported the estate to the probate court of Warren county to be insolvent, and commissioners were appQinted to examine and audit the claims against the estate. During the time that this commission was in progress, -the administrators filed a petition in the probate court; in which they stated that a very large proportion of the debt due from the estate, was originally owing to the Commercial and Railroad Bank of Vicksburg, but that said debts, on the 13th of February, 1840, had been transferred to the appellants, as the assignees of said bank. That said bank had issued a large amount of post notes, and other bank notes, which were then greatly depreciated in value; that the assignment was fraudulent and intended to evade the law against assignments by the banks. The petition therefore prayed that the bank and its assignees might be made parties, that the commissioners of insolvency might be directed to amend their return so as to show the amount due to the assignees to be due in the notes of the bank, and that the court might authorize and require the petitioners to buy with the funds of the estate the paper of the bank, and to pay the share of the bank with the paper so purchased. The assignees filed an answer in which they insisted upon the validity of the assignment, and urged their right to receive payment in par funds. The probate court sustained the petition and directed payment to be made in the notes of the bank, from which decision the cause comes by 'appeal to this court.

An inquiry lies at the root of this investigation, whether the probate court had any jurisdiction in the matter presented to it. The law, regulating proceedings when an estate is declared to be insolvent, is contained in the 80th section of the statute in regard to the estates of decedents. H. & H. 409.

It provides that the court, after ordering the estate to be sold, shall appoint two or more commissioners, with full power to receive and examine all claims against the estate; that the commissioners shall give notice of the times and places of their sitting, and that time not exceeding eighteen months, shall be allowed by the court to the commissioners to bring in their report, at the end of which time the commissioners shall make their report and present a list of all the claims that shall have been laid before them, with the sums they shall allow on each respective claim, to the court. After payment of certain privileged claims, the court shall order the residue and remainder of the estate, both real and personal, (the real estate having been sold .according to law) to be paid and distributed by the executor or administrator to and among the creditors, who shall have made out their claims with the commissioners, in proportion to the sums unto them respectively due and owing, provided, that notwithstanding the report of commissioners, the creditor whose claim is wholly or in part rejected, or any executor or -administrator, who may be dissatisfied with such report, on a particular claim,-may, for good cause shown, have the said claim referred by the court to referees, whose return and award thereon, returned to the next term of the court and approved by the court, shall be final and conclusive. It also provides that no suit shall be brought against an insolvent estate, unless the executor or administrator shall consent to have any claim settled by action at law, when the judgment shall determine the claim, and be reported by the commissioners, and every executor or administrator, after final apportionment of such distribution among the creditors, shall be liable to the creditors for their respective shares in such distribution.” This embraces nearly all the statutory provisions on the subject.

We have been thus particular in setting out the law, that the grounds of our opinion may be distinctly seen. It is certain that the power which the court was called on to exercise in this petition, is not expressly conferred by the constitution or by the statute, nor is it necessary to give it by construction, to enable the court to perform the functions which are prescribed to it. The right or power is nowhere given to administrators to file a bill or petition, to obtain directions from the court, as to the mode of administering the estate. Such powers are exercised by the English court of chancery, but it does not thence follow that they belong to our probate court. Several courses were open to the administrators under the statute, to effect the object they had in view. By excepting to the report of the commissioners, they might have had the matter laid before referees, and then by exception to their report, the judgment of the court might have been called for on the point. Or they might have required suits at law to have been brought on the several claims, when upon pleadings framed for the purpose, a decision might have been had directly on the questions.

There must be some boundary and limits to the jurisdiction of that court, otherwise the most complicated questions which can arise either at law or in equity, will be subjected to its determination, often, without the formality of those pleadings which have been sanctioned by the wisdom and experience of ages, as the safest and surest guards for the correct administration of justice. This case itself affords a strong illustration of this view. Several exceedingly complicated and embarrassing questions are involved. The power of a bank to make assignments of all its property, the question of fraud in this particular transaction, the effect and operation of the various legislative enactments in regard to the banks, the right of the court to compel the assignees to receive in payment the issues of the bank, are all involved in the decision. They are grave and important points, and it seems to us that any court would hesitate to pass upon them, in a mere collateral proceeding. If, as is the practice in the English court of chancery, an executor or administrator may file a bill or petition for directions in the administration of an estate, it will soon come to pass that the administrators of commercial men will ask for leave to continue partnerships, and carry on business, and finally in every complicated estate, the burthen of the administration will be cast upon the courts of the country. The judgment of the court, to be upheld, must screen the party who acts under it from responsibility, and thus a principle of irresponsibility in the discharge of an important trust, must be virtually introduced. If such petition may be filed by the administrator of an insolvent estate, there is no reason to say that it shall not be done by the administrator of a solvent one, and it is easy to see that administrations could scarcely ever be brought to a close. The courts of the country, like the English chancery court, would become the repositories, where estates would be locked up from generation to generation.

These consequences cannot be shut out from consideration, and they determine us against the exercise of such a power by the probate court, and induce us to say that it is better not to depart from the ordinary and prescribed mode of administration.

If such petition may be entertained against one of the creditors, it may equally be against each one severally, and a multiplicity of suits and issues be thus kept in progress at the same time. The remedy given by the statute is much more simple and obvious. By the report of the commissioners the parties who have claims are or may be all brought into court, when by exceptions to the report, all disputes may be put in the train of adjustment, without any farther service of process.

Upon the whole we think that the probate court had no jurisdiction o-ver^ this petition, that its order must be reversed, and the petition dismissed.

Besides the modes already pointed out of raising the question intended to be presented by the administrators, it is possible that there is still another. The court of probate can issue no execution to compel the payment of the proportionate share of debts to the creditor; (2 Lomax Ex. 529; 2 Lee’s Eccl. R. 176,) the only means of enforcing its order being by attachment. In case of failure to pay, however, or an offer to pay in funds which the creditor will not accept, an action would lie on the bond of the administrator for a breach. 13 Johns. 437. In a suit against an administrator, as such, to recover a debt out of the assets of the deceased, it seems that a set-off of a debt due to him individually would not be allowed. 21 Wend. 674. But in a suit for a devastavit, it becomes a personal matter, the judgment would be against him personally, and a set-off of a debt or claim due to him in his own right would be admissible. Dubois v. Dubois, 6 Cow. 494. This however is thrown out as a mere suggestion, for the consideration of counsel, not as an opinion by which we should feel ourselves concluded.

Judgment reversed, and petition dismissed for want of jurisdiction in the court below.  