
    Tapley and Others v. McGee and Others.
    
      Monday, December 18.
    An infant can not appoint an agent or attorney.
    An order of the Probate Court directing the payment of money of an infant distributee to a third person, as the agent of the infant, is erroneous.
    It was error in the Probate Court, under the B. S. 1843, to order a distribution of moneys belonging to an intestate’s estate, before final settlement, without directing the administrator to require a bond, with sufficient surety, for the return of the moneys, should the same be necessary for the payment of debts, &c., or to equalize the shares among those entitled thereto.
    Where error is prosecuted against a party as an administrator, the plea in nullo est erratum admits his representative character.
    ERROR to the Ohio Probate Court.
   Davison, J.

At the February term, 1850, the clerk of the Ohio Probate Court reported to that Court that he had, in vacation, granted to Daniel Tapley, Jerusha Brown and Hazlett E. Dodd letters of administration upon the estate of John M. Daniels, deceased, who died intestate. Whereupon they moved the Court to confirm their appointment; but the Court refused the motion, declared the letters granted to them by the clerk void, and, in their stead, appointed Thomas Kempton and Lot North administrators of said estate. Kempton and North, at the November term, 1850, filed their petition, representing that John, Nancy, James, Darius and Boone Me Gee were the heirs at law of the said Daniels; that they were minors, and one Joseph Owens was their guardian. The petition prays an order directing the estate to be reduced to assets, and that the administrators be authorized to make settlement with said heirs, &c.

The record shows that at a subsequent day of that term, the Court heard evidence in support of the heirship of said minors, and adjudged them to be the heirs of said decedent, and authorized the administrators to settle with them, or their legally constituted guardian; but directed said administrators not to make distribution of the estate until further order of the Court.

It also appears by the record, that Kempton and North, at the February term, 1851, by petition, represented that they had in their hands moneys belonging to said estate, more than were sufficient to satisfy all the debts against it, and prayed authority from the Court to pay over to James S, Jelly, the agent and attorney of John, James, Nancy, Darius and Boone Me Gee, the heirs aforesaid, all the moneys then in their hands, and such other money as. they might thereafter collect, belonging to the estate, and take his receipt for the same.

Upon a final hearing of the petition, the Court made an order in accordance with the above prayer, directing the administrators to pay over to Jelly, as such attorney and agent, all moneys then in their hands, &c., and take his receipt, &c.

This order, we think, is erroneous. The heirs were minors, and, for that reason, were not competent to appoint an agent or attorney to receive and receipt for their respective distributive shares in the estate. The record shows that they had a guardian, and it is difficult to perceive the reasons why the moneys were not directed to be paid over to him. He was obviously the person properly authorized to receive and control the estate of his wards. ¥e know of no provision in our statutes in support of a decree requiring an administrator to pay over the distributive share of an infant to the agent or attorney of such infant.

J. W. Spencer and P. L. Spooner, for the plaintiffs.

D. S. Major, for the defendants.

But there is another ground upon which this decree must be held defective. The Court by its decree should have directed the administrators to require a bond with sufficient surety for the return of the moneys paid over to the distributees, “whenever necessary for the payment of debts,” &c., “ or to equalize the shares among those entitled thereto.” Such direction to the administrator is a requirement of the statute, which should have been embraced in the final order of the Court. R. S. 1843, p. 550, s. 360.

We have seen that the letters of administration granted to the plaintiffs were revoked by the Court, and Kempton and North appointed in their stead; but no reversal of the order revolting the letters to the plaintiffs is shown. Therefore, it is contended, that they are not proper parties in this Court. What would have been the effect of this objection had it been raised by motion to dismiss the writ of error, is a point which, at this stage of the proceedings, is not properly before us. The plaintiffs, as administrators of the estate of John M. Dcmiels, deceased, have assigned errors. To this assignment the defendants have pleaded in mallo est erratum, and, by that plea, we think, they have waived their objection. Rundles v. Jones, 3 Ind. 35, decides that “the plea Hn mallo est erratum’ to the assignment of errors by an executor, admits his representative character.” This authority is directly in point. We must, therefore, regard the plaintiffs before this Court in the character of administrators.

Per Curiam.

The decree is reversed with costs. Cause remanded, &c.  