
    William Wright vs. Mildred Beck.
    The statute of this state (H. & H. 395, § 35,) provides for the grant of letters of administration by the probate court of the county where the intestate had his residence, or if he had none, of the county where he diejd, “ or of that (county) wherein his or her estate, or the greater part shall be; ” held, by the latter clause of the act was alone intended that county in which the estate might be at the time of the decease of the intestate, and not the county where the estate might be at the time of the grant of letters of administration.
    B. alleged, in her petition in the probate court of Yalabusha county, that J. B. died in the state of Arkansas, that part of his property since his death had been improperly removed into that county in this state, and W. had taken out letters of administration thereon, and sold part of it; that she was the widow of J. B., and prayed that the letters of administration might be revoked, the administrator’s sales set aside, and she herself appointed admin-istratrix ; the probate court decreed according to the prayer of the petition. Held, that the grant of letters to W. was coram. nonjudice, and properly set aside and revoked, but the probate court had no jurisdiction to set aside the sales made by "W., and so far its decree was erroneous.
    On appeal from the probate court of Yalabusha county; Hon. Thomas Carbry, judge.
    Mildred Beck, in October, 1845, filed her petition in the probate court of Yalabusha county, to have revoked and annulled the grant of letters of administration in April, 1845, to William Wright, upon the estate of Jeffrey Beck, whose widow she was, to have certain sales made by Wright, as administrator, set aside, and letters granted to herself.
    
      She states that these letters to Wright were procured by fraudulent means, at a time when she believed the property of her husband was in Arkansas, where he died ; that Wright and John Beck, by secret means and a fraudulent combination, removed the property to Yalabusha county, in this state; and Wright, expressing to her his profound ignorance as to the whereabouts of the property, came to Yalabusha and took out letters of administration upon it, in order to deprive her of her lawful right to administer.
    That Wright made an inventory of the property to the court, and in a fraudulent manner effected a sale of it; and a portion if not all was bought for the use of Wright and under his direction, though nominally the sale was made to John Béck. She prays that the letters may be revoked, the sale set aside, and letters granted to her.
    Wright and John Beck are made defendants.
    The defendant Wright answered the petition at length, alleging a fraudulent combination between William Beck and John Beck and the complainant, to run the property of Jeffrey Beck first to Texas, and afterwards to North Carolina; and that he as a creditor of the estate of Jeffrey Beck, pursued it and brought it back, &c.
    It is not deemed requisite to set out the pleadings or proof further.
    The probate court decreed as follows :
    “ Upon opening the matters in this case, and the parties appearing both in person and by counsel, and a patient and particular investigation being made in all the matters set forth in the petition of the plaintiff, and the court being fully satisfied that most of the allegations set forth in said petition are true:
    “ It is therefore considered and ordered by the court, that the letters of administration granted by this court to the said William Wright, on the estate of Jeffrey Beck, deceased, on the 7th day of April, 1845, be revoked, and that all power and authority and trusts thereby conferred, now cease and determine, and the sale of the property by said administrator, made on the 7th day of June, 1845, be set aside and for naught held.”
    
      
      A. H. Davidson, for appellant.
    1. The act of the legislature, H. & H. 895, gives jurisdiction to that county “ where the greater part of his estate shall be; ” it is plain that no reference is made to the act of the intestate in locating the property in the particular county; the court has jurisdiction where the property shall be ; here it was in this state, in Yalabusha county, consequently the probate court of that county had jurisdiction.
    2. John Beck never answered the petition, nor was served with process, nor brought before the court; so there was in reality but one party, and a summons and severance not necessary.
    3. The appellee forfeited her right to administer by failing to apply in sixty days after the death of her husband, and the court had the right to appoint a creditor or other fit person, (H.
    & H. 395,) and having done so, the judgment and appointment were conclusive until reversed. 2 S. & M. 339 ; 6 Pick. 426 ; H. & H. 385 ; 5 How. (Mi.) 739 ; 1 Ibid. 453; 1 Pet. 328.
    4. At a subsequent term, the probate court had no jurisdiction over it. 1 S. & M. 321, 510; 2 Ibid. 287, 304, 339; 5 How. (Mi.) 736.
    5. The probate court had no power to revoke the letters. In" H. & H. 395, 36, 44 - 48, are detailed the instances in which probate courts may revoke letters. Expressio unins, exclusio est alterius. The case made in the bill is not in the bill.
    6. It had no power to set the sales aside. H. & H. 395, §§ 36-48; 3 Bac. Ab. tit. Exec.) 3 T. & M, 125; 15 Serg. & R. 42; 1 Wms. Ex. 340; 3 S. & M. 304.
    
      Fisher, for appellee.
    1. But one defendant joined in the appeal.
    2. The probate court had no jurisdiction ; the property was not placed in the county by the deceased; nor was it there when he died.
    3. The widow was prevented by fraud from asserting her rights to administer within the sixty days. This should not affect her right.
    
      Mayes, Clifton and Mayes, on same side.
    1. The probate court had no jurisdiction; the letters granted were void, and therefore their revocation cannot be erroneous. H. & H. 395, § 35; 1 A. K. Marsh. 300 ; 4 Litt. 277.
    
    
      2. No grant of letters in this state would be valid under the circumstances; the grant in Arkansas conferred the legal title on the property then in that state on the administrator there; this was not removed or destroyed by the removal of the slaves to this state; the administratrix in Arkansas can pursue here any remedy she pleases to recover the property, without taking out new letters. It would be otherwise if the property had never been in Arkansas.
   Mr. Justice Ti-ugher

delivered the opinion of the court.

The probate court of Yalabusha county, granted letters of administration to William Wright, upon the estate of Jeffrey Beck, deceased. At a term, subsequent to this grant of letters, Mildred Beck, widow of said Jeffrey, filed her petition in the same court, charging, that said Jeffrey died in the state of Arkansas, intestate, and that a portion of his property was improperly removed, after his death, into this state, and the county of Yalabusha, and praying for a revocation of said letters of administration, for the setting aside of sales of certain property made by Wright, as administrator, aforesaid, and for a grant of letters to said petitioner. The court below decreed, revoking the letters of Wright, and setting aside the sales made by him, in his capacity of administrator.

The statute H. & H. 395, sec. 35, provides that the granting of letters of administration, of the estate of any intestate, and the hearing and determining the right of the same, shall pertain to the orphans’ court of the county in which the intestate had, at the time of his or her death, a mansion-house, or known place of residence; and, if he or she shall have no such known place of residence, then to the orphans’ court of the county where the intestate' shall die, or of that wherein his or her estate, or the greater part thereof, shall be.

The question to be resolved, is, whether the statute is to be construed to relate to the county where the estate may be, at the decease of the intestate, or to the county where it may be at the time of granting the letters of administration.

A fair construction of the language of the statute, leads to the determination that the county is alone intended in which the estate may be at the time of the decease of the intestate. In New York, the statute, besides authorizing a grant of letters of administration, under the same circumstances as they are allowed in this state, provides further, that they shall be granted where an intestate, not an inhabitant of that state, dies out of that state, not leaving assets therein, but assets shall thereafter come into the county of a surrogate. Kirtland’s Surrogates, 61. The question now before us was determined, as has been above intimated, in the case of Embry v. Millar, 1 A. K. Marshall, 300.

The grant of letters of administration to Wright, by the probate court of Yalabusha county, was coram non judice, and, therefore it was competent for thát court, upon being apprized of that fact, to direct them to be revoked, vacated, or recalled. But that court proceeded a step further, and directed sales, which had been made by Wright, as administrator aforesaid, to be set aside. This was assuming a jurisdiction which, under the circumstances, did not appertain to that court.

The decree of the probate court must, therefore, be reversed, and a decree entered in this court, directing the letters of administration granted to William Wright, upon the estate of Jeffrey Beck, to be revoked.  