
    Charles Pendleton et al. vs. Melissa Prestridge, Administratrix of Samuel Prestridge, deceased.
    The act of March 5th, 1846, “ to amend the laws of the state, in relation to the courts of probate,” so far as it authorizes a bill to review settlements in that court, as decided in Hooker v. Hooker, 10 S. & M. 599, does not apply to settlements made prior to its passage.
    
      A bill of review of settlement with the probate court, whether it be to review an annual, partial, or final settlement, can only lie to a valid settlement; if the settlement be illegal or void for want of notice, or defective notice to parties interested, or other cause, a bill of review is not the proper remedy.
    A petition filed in the probate court, attacking the settlement of an administrator, as a false, inaccurate, and fraudulent settlement; seeking to surcharge and falsify the administrator’s account, and praying a decree opening the account for the correction of errors in it, is a petition to review the settlement, and cannot be entertained, where the settlement was made prior to March 5th, 1846.
    On appeal, from the probate court of Warren county; Hon. M. B. Cannon, judge.
    Charles Pendleton and others, heirs of Joseph Pendleton, deceased, on the 10th of August, 1846,filled a petition in the probate court of Lawrence county, to open an account and final settlement, made on the 27th of March, 1845, by Melissa Prestridge, administratrix de bonis non of Samuel Prestridge, deceased.
    " The object of the bill and nature of the account sought to be opened, is sufficiently stated in the opinion of the court.
    The probate court in September, 1846, dismissed the bill, and the petitioner appealed.
    
      D. Mayes, for appellant,
    Stated briefly the reasons why he had prosecuted this appeal; but that the case of Hooker v. Hooker, 10 S. & M. 599, had settled the rule differently; yet he insisted that the record did not in this case show affirmatively, as he contended it ought to do, that the proper parties had been notified of this settlement; without which the settlement would be void. Without this notice, it would not be a final and a conclusive settlement. He did not so regard or speak of it in his petition, but only as a fraudulent settlement.
    He cited How. & Hutch. 403; North on Prob. 3 65; and referred to the various decisions of the court on the subject of notice in such cases.
    
      
      D. C. Glenn, for appellees.
    1. Probate court have no jurisdiction to set aside a settlement by a guardian or administrator, at a term subsequent to that at which the decree was made. 5 S. & M. 422; Ib. 130, 751. If there is fraud there is a remedy in chancery. Turnbull v. E?idcot, 3 S. & M. 302.
    2. The operation of act of 1846 is prospective, and does not affect this case. Hooker v. Hooker, 10 S. & M'. 599, exactly covers this case.
    3. Even if the act covered such a case, it could not take from us the defence we have in the conclusive nature of the settlement we have made in the probate court. It is a vested right beyond the power of the legislature. 1 How. 189.
    4. In Hooker v. Hooker, the court says, that “ by law in force at the time this settlement was made, it was final and conclusive as far as the action of the probate court was concerned; ” generally in -support of this proposition, I refer to several Virginia cases, where this matter seems to have been most elaborately and ably handled. 4 Call, 460; 3 Munf. 305 ; 4 lb. 110, 369; 2 Leigh, 76; 3 lb. 348, 407 ; 4 H. & Munf. 255; 2 lb. 245, 261; 5 Ves. 566 ; 2 Bro. Ch. Ca. 62.
   Mr. Justice ThacheR

delivered the opinion of the court.

It appears from the brief of counsel for the appellants in this case, that it was brought into this court to enforce a construction of the act of March 5, 1846, entitled “An act to amend the several laws of the state in relation to the courts of probate,” and by which any person interested in an estate of a decedent may at any time within two years after final settlement, by bill of review, open the account of any executor, administrator or guardian, and surcharge and falsify the same. It was supposed that the act was retrospective, applying to any settlements made prior to its passage, as well as prospective, applying to settlements made subsequently to its passage. But this ground is now abandoned, in consequence of our decision upon the point in Hooker v. Hooker, 10 S. & M. 599, and holding a different doctrine.

It is now, however, contended, that the settlement sought to be reviewed,is not a final and conclusive settlement, and was not so regarded in the petition to the probate court, filed as a bill of review, but that it was treated only as a fraudulent settlement.

The settlement of Melissa Prestridge of her administration of Samuel Prestridge’s estate, made in 1845, was a final settlement, or it amounted to no settlement at all. .It was not offered as, nor has it any features or guise of, an annual or partial settlement. It was evidently designed as a final settlement, and the decree of the probate court passes upon it as such. If it were not a legal final settlement, or if it be void in consequence of want of notice, or defective notice to parties interested, or from the absence and neglect of proper or from erroneous preliminary proceedings, then a bill of review was not the proper mode of reaching and attacking it. A bill of review presupposes and can lie only to a settlement valid as a settlement, whether annual and partial or final.

The petition, as we gather from it, treats the settlement as a valid settlement, while at the same time it attacks it as a false, inaccurate and fraudulent settlement. It charges as to it, that the administratrix procured it to be returned to, approved by, and recorded in the probate court as a final account of that administration. The petition does not object to the settlement upon the score of its illegality because of want of due notice to those interested in the final settlement of the estate, or because of unauthorized action by the court, but the whole aim of the petition is to falsify the settlement as a settlement, for the statement in it is, that the petitioners “ file this their bill of review to surcharge and falsify the said account.” This is the burden of the petition, exemplified by numerous illustrations directed to many and various items of the account. The prayer of the petition is to compel answers to the bill of review and for a decree that the accounts of the administration may be opened for the correction of the several interlocutory orders and final decree made therein.

In either aspect of this case, we are inclined to think the court of Lawrence county was correct in decreeing the dismissal of the petition.

Judgment affirmed.  