
    Simon Farve’s Heirs, et al. v. Isaac Graves and Wife.
    As a general rule, by virtue of the constitutional provisions of this state on that subject, the probate court has original exclusive jurisdiction in all matters of wills and testaments, of administration on the estates of deceased persons, and of distribution.
    In administration cases, in which the court of chancery had original jurisdiction previous to our amended constitution, that court may still take cognizance, where no letters testamentary or of administration have been obtained in our probate courts
    F. died in 1813, in Louisiana, leaving a will in that state ; his widow took possession of his real and personal estate in this state, without taking out letters testamentary or of administration upon the same, and used and converted large portions thereof to her own use. The heirs and devisees of F. filed their bill in the superior court of chancery against the widow and her second husband, for an account and other relief. Held, upon demurrer to the bill, that the superior court of chancery had jurisdiction of the case.
    
      Miter, if letters testamentary or of administration had been obtained ; in that event the proceedings would have pertained properly to the probate court.
    Appeal from the superior court of chancery. The bill in this case was filed by John Farve and others, the heirs and devisees of Simon Farve, deceased, against Isaac Graves and Celeste Graves, his wife, formerly Celeste Farve, the widow of Simon Farve, deceased, and against Richard Garrison.
    It averred that Simon Farve died in 1813, leaving a will made in New Orleans, appointing Amand Duplantier, sen., executor, who, on the 3d of January, 1814, gave bond to Thomas Anderson, chief justice of Hancock county, in the sum of ten thousand dollars, with Noel Jordan and John Bennett, securities.-
    That the will was proved in New Orleans, and a copy of it filed in the orphans’ court of Hancock county, and recorded in 1819. Duplantier failed to make probate of it in Hancock, and never administered on the estate.
    That on June 15, 1814, Celeste Farve, the widow of testator, without right, reported an inventory and appraisement of the estate to the orphans’ court of Hancock, which was received and recorded, and was substantially correct.
    That on June 28th, 1814, Celeste Farveand John Chalón entered into an administration bond, in the sum of forty thousand dollars, faithfully to administer on condition the will was proved, at a time specified in the bond, which never was done, nor were letters ever granted or issued.
    That until August, 1814, for more than a year after testator’s death, Celeste had possession of the estate, and neither Duplantier or Chalón, before or after that time,, used the estate but in conformity with her directions, or at her* request.
    That by the provisions of the will the complainants were entitled equally to a fifth of the estate of testator, which had belonged to him before marriage, and to one half of that which was acquired after marriage, and the widow of testator to the other half; and charged that their several shares should be ascertained and reported with the appraisement of the estate.
    That the enjoyment of testator’s goods (which the bill averred meant only household goods, and not slaves, schooner, cattle, &c.) was given to the widow until the complainants should arrive at age; but the use, increase, and profits of all the residue, they were entitled to from the time the division should have been reported under the directions of the will.
    That Duplantier never acted as curator, though appointed; they never had any other guardian than their mother, who, though named by the will, never formally assumed to act, nor made any report or account of guardianship.
    That their education was neglected in disregard to the injunctions of the will, and they were left in ignorance of their rights.
    That no division of the estate has been made, and nothing worth recounting had been received by the complainants.
    That when testator died, complainants were too young to know the extent of his debts, but they believe as much was due to as was owing by the estate, and had it been prudently managed, would have paid the debts, educated the children, and left thefn large fortunes.
    The bill proceeded to charge particular acts of waste, and conversion of the estate of the testator by his widow; which it is not deemed necessary to notice more in detail. It also charges the sale of various portions of the property to persons unknown, and a part to one of the defendants in the bill.
    It then proceeds to state that, in 1824, Graves and wife assumed and pretended to settle, in the probate court, their accounts of administration, or executor’s account, upon the estate of Farve, by which pretended account they rendered the estate insolvent, and insufficient to pay the debts.
    That this account was trumped up, and fictitious, rvas without legal vouchers, and essentially fraudulent and unjust.
    That it was a fraud upon the court of probate of Hancock county, and said court had no jurisdiction, either over the subject-matter of the account (because not truly an executor or administrator’s account, but the unjust account of executors in their own wrong) nor over the persons, because they were not executors, or administrators, or the representatives of such. Wherefore complainants repel this attempt, as wholly extrajudicial, and insufficient to subserve the purpose of enriching said Graves and wife.
    That complainants, since their discovery of these wrongs, have applied to Graves and wife for justice, but failed to obtain it.
    The relief prayed by the bill is :
    1. An account of all the estate which has come to the hands of Graves and wife, and, inasmuch as they acted as executors, although not such, an account for the lands and other property sold by them.
    2. An account for all the personal property, increase and effects of the estate, which have ever come to the possession of either Graves or wife.
    3. As the widow of testator assumed to act as executor, administrator, or legally authorized trustee, although not either, that Graves and wife account for all proceeds of sales of lands made as belonging to the estate, and for all neglects and omissions, with which a legally authorized executor, administrator, or trustee would be chargeable.
    4. In said accounting, that no item or matter of charge be allowed in behalf of the acts of either, but such as would have been good and valid vouchers against Farve’s estate, within the time limited by law, had the estate been legally administered and settled with all proper formalities in the probate court of Hancock county.
    5. An account for the use and hire of all the slaves, sold by both or either out of the state, at the highest rate of hire of such slaves, from 1814 to the taking the account; and for the value and increase of said slaves— the increase to be computed as equal in rates and proportion to the increase of slaves still retained by Graves and wife.
    6. An account for full hire of all slaves retained by them, or sold within the state, together with rents, issues, and profits, of houses, lands, schooner, cattle, goods, &c. of said estate, come to their or either of their possession.
    7. That whatever portion or interest of said estate may be found due Celeste Farve by the will, at the death of testator, be decreed, as set-off, satisfied, and disposed of, by sales and wastes committed by her and Graves and wife, and fully accounted for to them in the balance of account to be found against them.
    8. That all the property in kind, with its increase, now in possession of Graves and wife, belonging to the estate, be decreed to complainants, and directed to be delivered to them as part of their own property.
    To this bill there was a demurrer filed by Graves and wife, assigning various causes of demurrer.
    The Chancellor (the Hon. Edward Turner) dismissed the bill for want of jurisdiction, and an appeal was taken from that decision.
    
      Henderson, for appellants.
    Winchester, for appellees.
   Mr. Justice Turner

delivered the opinion of the court.

This case comes before us by an appeal from the superior court of chancery, and the only question which we deem it necessary to decide, is the question of jurisdiction, raised by the general demurrer to the complainant’s bill. This was the question on which the Chancellor dismissed the bill. He decided under a mistaken view of the decisions of this court, then, recently made, and not maturely considered or fully understood.

The court of probate, it had been considered, had exclusive original jurisdiction in all matters of wills and testaments, of administration on the estates of deceased persons, and of distribution. But it seems now to be settled, that in administration cases, in which the court of chancery had original jurisdiction previous to our amended constitution, that court may still take cognizance, where no letters testamentary or’of administration have been obtained in our probate courts. See the case of McRae v. Walker, 4 How. 363.

In this case, no letters of administration, or letters testamentary have ever been granted in our state, according to the allegations in the complainant’s bill'; which fact is admitted by the general demurrer to the bill, and we consider that the distributees of the estate are not bound to take out such letters. If letters had been so obtained in this state, then the creditors and distributees would be obliged to seek their rights in the probate court. They would then have a subsisting and adequate remedy in that court against the executors or administrators, and would be compelled to resort thereto or to the courts of law, according to the nature of the case. 1 Johns. Ch. R. 57, 3; 3 Ibid. 467; 4 Ibid. 294; 5 Ibid. 186; 9 Pet. R. 658; 1 Johns. Cas. 429; 3 Ran. 598; 1 Madd. Ch. 91; 1 Har. & Gill, 220; 8 Wheat. 1; Fonb. Eq. 639, note, 638; Walker’s R. 79.

In this decision we do not intend to alter any old, or to establish any new rule. The demurrer to the bill must be overruled, and the cause remanded to the court below for further proceedings, according to the established rules in that court.

The decree of the Chancellor is reversed, and cause remanded for further proceedings in the court below.  