
    Elisha Cox vs. Nancy Cox, et al., Administratrix and Administrator of Daniel Cox, deceased.
    Unless the record of proceedings in the probate court shows affirmatively that errors have been committed by that court, so that they can be brought'to the cognizance of the high court of errors and appeals in the mode prescribed by law, the decree of the probate court will be affirmed.
    Where, therefore, D. C. died, and letters of administration were granted on his estate to J. D. ; and about a year after administration taken out, N. C. and another presented the will of D. C. to the probate court for the first time, by which E. C. was constituted his executor, and in a petition filed with the will, prayed that letters of administration cum testamento annexo might be granted them, averring that E. C., the executor named, was a nonresident; and the court granted the petition, and appointed them administrators c. t. a. accordingly ; and it did not appear that E. C. contested the petition, or that he claimed the right of executorship within the sixty days permitted by the statute ; held, on writ of error by E. C. to these decrees and orders of the probate court, that there was nothing in the record upon which they could be reversed, and they were therefore affirmed.
    Weit of error from the probate court of Choctaw county; Hon. H. A. Snow, judge.
    From the record in this case, which is very voluminous and involved, the following facts appear :
    Daniel Cox having died in the county of Choctaw, in the year 1842', at the April term of that year of the probate court of the county, letters of administration in chief were granted to John B. Deen, who gave bond as required, and appraisers were appointed.
    At the May term, 1842, one month afterwards, the last will of Daniel Cox was presented to the court, and established by‘the oaths of two of the attesting witnesses, and ordered for record, and recorded. By this will the real and personal estate of the testator was disposed of in various portions to his widow and children; provision made for Nancy Cox, the widow, and Elisha Cox constituted his’ executor, with directions to sell portions of his estate on terms prescribed, and power to make titles.
    At the same term, the letters granted in April to Deen were revoked; and Nancy Cox renounced the provision made for her in the will by petition ; and on the same day, letters of administration in chief in the ordinary form were granted to Elisha Cox (the one named sole executor in the.will,) and Nancy Cox, the widow, who gave bond and received the letters of administration in the usual form; no notice in the order, bond or letters being taken of the will.
    At the same term, immediately after the grant'of letters of administration, it was “ordered by the court, that the last will and testament of Daniel Cox, deceased, be set aside, and that an equal distribution of the property, both real and personal, be made between the widow-of said deceased and the heirs of said estate.”
    At whose instance, and on what ground this order was made, does not appear in the record.
    Appraisers were appointed at the same term, who proceeded in discharge of their duty, and reported to the June term, 1842 ; and their report was received, allowed and recorded.
    At the July term, 1842, the administrator and administratrix were ordered to sell all the personal property on the terms prescribed. Certain persons were appointed to allot one year’s provisions to the widow ; and the administrator and administra-trix ordered to publish notice to creditors to present their claims.
    At the September term, 1842, other appraisers were appointed to appraise a portion of the personal estate brought by Elisha Cox, -the administrator, from Alabama, under an order of the court.
    At this term, Levi Childres was appointed guardian of the children of Daniel Cox.
    And at the October term, 1842, Childres by petition represented to the court, that Elisha Cox was a non-resident, and his sureties on his administration bond insufficient, and prayed his removal from the administration.
    
      At this term, Elisha and Nancy Cox made their report of the sale of the personalty of the deceased, which was allowed and recorded. Nancy Cox applied for dower in her husband’s realty, and the court appointed the November term next of the court, to try the right of Elisha Cox to administration, and ordered subpoenas to be issued as might be directed ; and, on motion of Childres, citations were ordered both for Elisha and Nancy Cox to appear at the November court, to show their right to administration, and perfect their sureties; and also for Elisha Cox individually, to show cause why he should not be removed because he was a non-resident.
    The reports of the appraisers on the additional property, and of the persons to allot the widow’s provision for the year, were also made to the October term, 1842, and allowed.
    Both citations issued to the November term against Elisha Cox, were returned executed ; and at that term another was ordered for him to appear at the December term, for the same causes; this last citation was also executed, and at the December term, 1842, the court revoked the letters of administration granted to Elisha Cox.
    At this term, Nancy Cox applied for an order to have her dower allowed in the realty of the deceased, and publication was ordered.
    At the January term, 1843, the court being satisfied that publication had been made, directed the ’ writ to set apart the widow’s dower, to be issued.
    At this term, Nancy Cox filed her petition, stating the vacancy in the administration of the estate, and praying for letters to herself alone; the petition was heard and overruled; and letters granted to herself and Edward Johnson, who qualified, gave bond, and received letters in the ordinary form.
    At the February term, 1843, an attachment was issued against Elisha Cox, because he would not deliver up the papers belonging to the estate to the new administrator and adminis-tratrix; the attachment was executed, and Elisha Cox after-wards discharged from custody by consent.
    At the March term, 1843, Nancy Cox and Levi Childres filed a petition, in which they state, that Daniel Cox’s will had been regularly admitted to probate by the court and recorded ; that Elisha Cox, hamed as executor therein, had failed to give security as required by law, and had neglected, for the space of more than forty days to exhibit the will for probate, and was at that time absent from, and a non-resident of the state, and they prayed that letters of administration, with the will annexed, might be granted to Nancy Cox and Edward Johnson. At the same term, Childres, as guardian of the children and legatees under.the will, filed a petition to have the will established, and letters c. t. a. granted.
    Upon which petition the following order was made: “ On the petition of Levi Childres, and on the production of the last will and testament of Daniel Cox, late of the county of Choctaw, deceased, and on hearing of the cause and the examination of the witnesses, and proof adduced, it is ordered, adjudged and decreed, that the last will and testament of him, the said Daniel Cox, &c., deceased, with the testimony thereon taken, be filed and admitted to record in this court.”
    At the same term it was ordered, that letters of administration with the will annexed, be granted to Nancy Cox and Edward Johnson, which was done; and they took the prescribed oath and gave bond.
    From this order, appointing Nancy Cox and Johnson, admin-istratrix and administrator, c. t. a., Elisha Cox prayed for and obtained a writ of error on the 25th of April, 1843, to this court.
    Sheppard, for plaintiff in error.
    All the orders, made in reference to the estate, are irregular and void. After the probate of the will, no administrators could be appointed until the executor had renounced.
    The order setting aside the will, and declaring a division of all the estate, was void, as the record shows no foundation for such decree.
    The last order, appointing Johnson and Cox administrators with the will annexed, was irregular, there having been no summons or citation to the executors of the will.
    
      Waul, for defendant in error.
    Every act done and performed by the court until the 27th March, 1843, was absolutely null and void; at that time the question came before the court as new; the will until that time never having been probated; the executor, Elisha Cox, never having offered to give security, or to exhibit the will, but on the contrary, having neglected so to do. It became the duty of the court to appoint the proper person as administrator with the will annexed, the executor not being in the state. How. and Hutch. 389,' § 18.
    To all the proceedings Elisha Cox was not a party injured ; having made no application, no movement, or in any manner objected to the proceedings of the court, he cannot complain now, or reverse the decision made with his consent or without exceptions; and had he at that time proposed himself to qualify as executor or administrator, it was within the discretion of the judge to allow it.
   Mr. Justice Thachee

delivered the opinion of the court.

This appears to be a writ of error from the decree of the probate court of Choctaw county, appointing certain persons administrators with the will annexed, of Daniel Cox, deceased. The voluminous record shows a great variety of orders and proceedings that were probably erroneous, but there seems to have been no party present to challenge their correctness, and no proper steps taken to bring them legally to the supervision and decision of this court. Finally, after the estate had been nearly a year in the probate court, the last will and testament of Daniel Cox was presented, and for the first time duly probated, and directed to be recorded. This was done upon the petition of Nancy Cox, the widow of Daniel Cox, and another, the guardian of his minor children, who represent, that the executor named in the will, Elisha Cox, was a non-resident of the state. It does not appear that Elisha Cox contested this petition, which also prayed for letters of administration cum testa-mento anne.ro ; or that Elisha Cox claimed the right of execu-torship within the sixty days permitted by statute. In short, there is nothing upon which the decree can be reversed, and it is therefore affirmed.  