
    John L. Stubblefield et al., administrators de bonis non of Hiram Coffee, deceased, vs. Joseph. A. McRaven and Thomas J. Coffee.
    For a devastavit, or maladministration, the heirs or distributees and legatees may have recourse against an executor, but administrators de bonis non can have no such recourse; the extent of their commission being to administer the effects left unadministered.
    M., one of the executors of C., at the January term, 1839, of the probate court, (due notice of his intention to do so having been made,) presented his account, with the voucher attached, for final settlement and allowance, and the judge having examined, stated and reported his account, ordered the same to be received, and the executor to be discharged from further liability as such ; S., as administrator de bonis non of C., filed his bill in chancery, seeking to make M. liable for maladministration, and for fraudulent retention of vouchers embraced in his settlement: Held, that the judgment of the probate court, discharging M., implies that it was founded on proper evidence, that every prerequisite to entitle M. to his discharge, had been performed, and that the same was conclusive, unless attacked for fraud.
    M., executor of C., after legal notice, had his final account of his administration, with the vouchers, examined, approved and allowed by the probate court, and himself discharged from his office as executor; afterwards the administrator de bonis non of C. filed a bill in chancery against M., alleging that he had not delivered up the voucher, in his final account mentioned, to the probate court, and praying that he be compelled to do so: Held, that the order discharging M. was conclusive that he had filed the voucher, with his account, unless impeached for fraud. '
    Where fraud is charged generally in a bill, and the answer denies it, and the case is submitted without proof, this court will decree as if no fraud had been charged.
    Where a probate court has full jurisdiction of a matter, its judgment is final, and cannot be disturbed unless fraud is charged and proved.
    A chancery court cannot entertain a bill to review an administration after it has been finally settled in the probate court, where the parties in interest had a fair opportunity of being heard.
    Where an executor, after he has been discharged from his trust, and letters of administration been granted to another party, attempts to collect assets of the estate, the possession of which he has retained, a court of chancery will, at the instance of the administrator de bonis non, enjoin him from the collection.
    Whether an executor, after being discharged from his trust, cannot retain any money of the estate, which may come to his hands, to satisfy any balance due to him by the estate ? Query ?
    
    
      This cause is brought by appeal, from the decree of the chancellor of the state. The bill in this case was filed by the complainants, John L. Stubblefield and Christopher G. Coffee, against Joseph A. McRaven and Thomas J. Coffee. ' It sets forth that Hiram Coffee died in 1836, leaving a large estate and no legitimate heirs; that he devised twenty thousand dollars to his wife, fifteen thousand dollars to the complainant, Coffee, and otherwise disposed of the balance of his estate; that he appointed the defendants his executors, to whom letters testamentary were granted by the probate court of Hinds county; that McRaven had the principal management of the estate; that the complainants had him removed from office in 1839, and were appointed administrators de bonis non, with the will annexed ; that McRaven rendered his final account to the probate court, which was acted upon suddenly and without the knowledge of complainants; that the account and inventory accompanying it were false, McRaven not having filed the vouchers and evidences of debt referred to in it, except some worthless ones, amounting to about ten thousand dollars, when there were more than sixty-four thousand dollars in his hands, embraced in the account; that McRaven and Coffee-are insolvent; that the former is appropriating the property to his own use; that he filed a bill in equity against one Goode, the object of which was to sell negroes which had belonged to' Hiram Coffee, under a statutory lien, and convert the money to his own use; that McRaven pretended that the estate was indebted to him, but that he has received and appropriated from the estate more than the amount of his claim; that he received from Hiram Coffee, just before his death, three thousand dollars, which he never accounted for; that part of the negroes on a plantation in Bolivar county he received; and had, besides, applied to his own use large amounts of cotton and sums of money received from a wood yard, all of which were owned by the deceased and McRaven in partnership, and for which McRaven had never accounted; that Coffee had but little to do with the estate, and was liable to the acts of McRaven. The prayer of the bill was for an injunction against McRaven, and that he might be compelled to file in the probate court the notes, and evidences of debt which he had retained.
    To so much of the relief and discovery prayed for in the bill that related to the vouchers and evidence of debt which should have been filed with his final account in the probate court, but which were alleged to be retained by him, McRaven, demurred, because the court of probate had full power and authority to order the vouchers and evidence of debt to be delivered up without the assistance of a court of chancery.
    To so much of the bill as sought an account from McRaven of the estate of Hiram Coifee, and to charge him as one of the executors of his will in a court of chancery, McRaven filed his plea, setting up that the probate court of Hinds county had made the following order: “In open court came Joseph A. McRaven, one of the executors of Hiram Coffee, deceased, who, having made publication according to law of his intention of making a final settlement with the probate court, at July term, 1838, and said notice having been continued by the order of said court from term to term, until the 17th day of January, 1839, when, at a special term of said court, held for that purpose, the said executor produced to said court the said final settlement, together with all necessary legal vouchers • upon examination thereof by the judge of said court, as is provided by law, and the said judge having been satisfied with the same, examined, stated, and reported said account, and ordered the same to be received; the said executor is therefore hereby discharged from all further liability as executor as aforesaid.” McRaven, in support of his plea, answered, denying all fraud and confederacy charged in the bill in reference to the final account passed by the probate court.
    An injunction was granted, which, upon the demurrer and plea, was dissolved. At the April term, 1842, of the chancery court, the cause was submitted upon the bill, demurrer, plea and answer, and the bill as to McRaven was dismissed with costs. Prom this decision of the chancellor the complainants appeal to this court.
    
      
      Rucks and. "Yerger, for appellants.
    Even if we could, in this case, have applied to the probate court, to compel McRaven to surrender up the vouchers belonging to the estate of Hiram Coffee, still that court could not have enjoined him from prosecuting the suits at law, nor the suit in equity. It could not have investigated nor relieved us against the fraudulent devices and artifices by which McRaven has appropriated the effects of said estate to his own use. It could not have settled the entire partnership transactions between McRaven and Hiram Coffee, and which it is necessary to settle, in order to see whether Coffee’s estate owes him, ■or he the estate. . Therefore complainants came into equity, because the probate court had not full power to grant them all the relief to which they are entitled. McRea v. Walker, 4 How. 455. Cable v. Martin, 1 How. 558.
    No adjudication in this state has gone so far as to deprive this court of jurisdiction in this case; but on the contrary, the cases are authorities in favor of the jurisdiction.
    There is another separate ground of jurisdiction: it is the fraud of McRaven, in seizing upon the assets of said estate, upon the settlement of his accounts, and holding them as a means to extort from complainants such agreements, releases, and admissions as he chose to dictate. His conduct in this particular is so bold, high-handed, and outrageously fraudulent, as to be almost without a parallel. Fraud is a distinct ground of equity jurisdiction. This court is the proper forum to hold McRaven accountable for- those assets, and for his control over them for the last three years; not as administrator, but in odium spoliatoris.
    
    But we do not understand the ground of defence set up by McRaven, on this head of jurisdiction. He insists to be brought before the probate court for a settlement. Suppose we ■should call him before that court, to show what he has done with the assets since January, 1839. He would then show that that court had no jurisdiction over him; that in January, 1839, he had been discharged from his executorship, and released from all liability as executor; and that the probate court having jurisdiction over him only as executor, could not call him to account for his actings and doings after he had been removed from the trust, tie certainly ceased to be executor in January, 1839, and from that time has been a mere intermed-dler and spoiler. It is true he came into possession of the assets, in his character of trustee; but since he has been denuded of the trust, he holds them as a naked wrong-doer. This court surely has jurisdiction, to compel him to surrender them; to give an account of every dollar he may have collected, for every voucher he may have assigned or used in any way, apd will hold him responsible for every cent which may have been lost, by his withholding the assets from the complainants.
    McRaven has plead the settlement made in January, 1839, in bar of the relief prayed for in the bill. He has also filed an answer to support his plea, denying all fraud, combination, and confederacy, in reference to the account allowed by the probate court.
    This plea and answer are set for argument.
    In the first place, this plea and answer do not meet the case stated in the bill. The main object of the bill is to obtain from McRaven upwards of $60,000 of the assets of Hiram Coffee’s estate, which the settlement in the probate court shows that he (McRaven) had in his hands, and which he ought then to have surrendered up. The plea goes upon the ground, that this sixty odd thousand dollars was gratuitously given by the probate judge to McRaven ; the account itself shows that the vouchers composing this sum belonged to Coffee’s estate. Therefore when we come demanding these vouchers, it is no defence to plead this settlement. And even if the plea had met the case stated in the bill, the answer is not sufficient to support it. Fraud is charged upon defendant, McRaven, and the specific acts in which that fraud consisted are distinctly stated. It is not enough to deny fraud generally, the facts must be answered.
    The bill specifies several items, which were not taken into the settlement of the probate court, and which have since that time come to the knowledge of complainants. These have never been acted upon ; some of them grew out of, or were connected with, a copartnership between McRaven and Coffee, and it is necessary to look into the terms of that copartnership, in order to settle them.
    If this court has jurisdiction, it will settle the whole matter. The probate court may settle the accounts of executors and administrators ; so may this court, if there he fraud or other equitable circumstances, giving it jurisdiction.
    If an executor, in settling with the probate court, withholds items which ought to be charged against him, could he not afterwards be summoned, and charged with those items ? Surely. If so, when this court takes jurisdiction of the matter, it follows, that it may charge the executor with every item which he wrongfully withheld from the probate court, without impugning, in the slightest degree, the judgment of that court.
    If the decisions of this state are regarded as establishing that settlements by executors and administrators with'the probate courts are to be held, not as stated accounts, but as conclusive adjudications, then the last hopes of the widows and orphans of the country are swept away. And every rational man, regardful of his family, will feel compelled to leave the state, in anticipation of death; for we all know how easy it is for an executor, who has influence at elections, to pass his accounts before a probate judge. He may give notice to the widow and children, or their guardians, and they may attend, but are in utter ignorance of the items which will be presented or withheld ; they merely hear the account, as it passes before the court, without any opportunity to investigate or summon witnesses. To make such a settlement conclusive, as a judgment, seems to us a great outrage upon justice, and ruinous to that class of the community who most need and deserve the protection of the laws. But this is inapplicable to this case.
    There is a motion, in this case, to compel McRaven to produce and file the assets and vouchers pertaining to the estate of Hiram Coffee deceased. See the authorities upon this description of motion in Smith’s Chan. Prac. 667.
    We hope this motion will not be resisted. It can he of no benefit to McRaven to retain them, but a great injury to complainants, to the creditors of Hiram Coffee, and to the legatees. The court has already refused to dissolve the injunction, upon the ground that complainants gave no bond, their bond given before the probate court being amply sufficient. We can perceive no rational ground upon which McRaven can for a moment be protected in the possession of these assets.
    
      Robert Hughes, for McRaven.
    1. It is insisted that the injunction should be dissolved, for various reasons. It will not be disputed that an injunction cannot be granted, or will not be sustained, if granted in a case where the court has no power to grant the relief, which is the gravamen of the bill. This, we insist, is the situation of this case. The bill is framed clearly with the view to account of an administration only. It is not framed with a view of opening the account which has been settled by decree in the probate court, upon the ground of fraud. An account merely is asked ; the account is not surcharged and falsified, nor is the court asked to open the decree in the probate court, on the ground of fraud. It is shown by the bill that the account was settled in the probate court, and it is evident, from the allegations of the bill, that the complainants had notice of that settlement ; for they say that the account was suddenly passed upon, without any knowledge of their foundation (except as to a 'few articles) in truth and justice. Suddenly passed upon, without complainants’ knowing their foundation. The complainants, by this means, knew the accounts were presented, but they did not know, because they had not time to examine into their truth ; placing the matter, then, upon the ground of a mere settled account. There is no ground to open, because before its settlement the complainants had an opportunity of placing it right, and failed to do it. The suddenness with which it was done can be no excuse for not attending to it; because the complainants might have obtained a continuance.
    2. But it is insisted, upon the part of the defendant, that this court has no jurisdiction in this case, upon the complainants’ own showing, even if this bill be framed with a view of setting aside the decree in the probate court, for fraud. The decree having been rendered in the probate court, which had and now has full jurisdiction of the matter, if it is sought to set aside the decree upon any ground, it must be in that court. The probate court, by the constitution, has full jurisdiction in all matters testamentary and of administration. This jurisdiction, it has been determined, is exclusive, and can be exercised by no other court. The probate court took jurisdiction and decided; how then can the court of chancery, in the same case, oust that jurisdiction 1 Clearly not by bill of review, or by bill to set aside the decree of the probate court, upon the ground of fraud : in either case the same can be done in the probate court. For when jurisdiction is given, all the incidents go with and accompany that jurisdiction. See Carmichael v. Browder, 3 How. 252, &c.
    If an improper decree was pronounced, if the parlies were present, and if they had notice they were bound, if they wished to protect their interest, to be present, the remedy was ample by appeal; and if there was no notice, they had nothing to do but apply to the probate judge by bill of review, or original bill, alleging fraud, or in some other mode known to be a proceeding in chancery. The court, in the case just referred to, say, the chancery powers of the probate court are as ample and complete, over the subjects of their jurisdiction, as that of the court of chancery ; and the jurisdiction being in the probate court, to the exclusion of all other courts, a bill could not be filed in the chancery court, but must be filed in the probate court. It will not be contended, it is presumed, that the court of probate has no chancery powers; this is too well settled by the law and the adjudications, and there is nothing to limit the exercise of these powers more than in the chancery court.
    
      3. Upon another ground this bill cannot be maintained. It isjfiled by the administrators de bonis non, and it seeks an account against the executor, who had been removed, of the administration which, by the complainants’ own showing,had been previously settled ; and in order to open the account, or set aside the decree, as either may be the object of the bill, it is alleged that the decree and settlement of the account were obtained or procured by fraud. Yet upon that account a balance, as the bill shows, is found in favor of the executor, and declared or adjudged to him, and this is sought to be set aside by the administrator de bonis non. What is this but an attempt by the administrator de bonis non, to charge the executor for maladministration ? This he is not competent to do ; his power only extends to administration of the goods unadmin-istered. See Kelsey's Administrators v. Smith’s Administrators, 1 How. 68. Prosser v. Yerby, 2 How. 87.
    That the cases cited are applicable, there can be no doubt. The principle decided by them is, that the administrator de bonis non cannot sue his predecessor for anything but the goods and chattels, rights and credits, which remain in his hands unadministered. He (the administrator de bonis non) has nothing to do with the account of the manner of administration by his predecessor. He is only to look to that which is unadministered, and further he cannot go. The accounting for what he had on hand with the probate court, by the executor, is the close of-his administration ; and if he falsely accounts it is maladministration, for which he may be sued by the creditors or distributees.
    On either of the grounds taken the court either has no jurisdiction of the subject-matter of the suit, or will not give the complainants the aid they ask ; and if so, we have proven that which, in the starting, we insisted would show, if proven, that the injunction should be dissolved.
    4. But if the court can maintain this bill, which we by no means admit, then it is insisted that the injunction should be dissolved, in so far as it enjoins and restrains the defendant, McRaven, from prosecuting the suits which have been commenced. If the injunction is continued, although the right to recover may be manifest, yet the debts may be lost by delay. The injunction, at least, should be so far modified, as to permit the prosecution of the suits to judgment or decree, and then collect and hold on to the money, for the benefit of him who may be entitled.
    
      Foute, on same side.
    See cases, Blanton v. King et al., 2 How. 861; Carmichael et al. v. Browder, 3 lb. 255; Walker et al. v. McRae, 4 lb. 457; Hurd v. Smith, 5 lb. 562; Simmons v. Henderson et al. Freem. Ch. Rep. 501. All of which show that the probate court has full, complete and exclusive jurisdiction of all the matters of the complainants’ bill, and that defendants are not liable to be called upon by complainants, either as administrators de bonis non, or as legatees. The fraud charged by complainant is of a general and indiscriminate character; nothing definite or specific alleged, as required by the rules of chancery courts, and a full and direct denial is given in the defendant’s answer, filed in support of his plea.
    The plea of McRaven, and exhibits of the records of Hinds probate court, are considered a full and complete answer to complainants’ bill, and defence to all the matters thereof, as decided in Griffith's Adm’rs. v. Vertner §' Wife, 5 How. Rep. 736.
    The bill is multifarious, and the prayer is such as does not entitle the complainant to any relief, because the specific relief prayed cannot be granted, and the prayer for general or other relief is not in the alternative or disjunctive, but is to be considered as the additional prayer in general terms of the specific relief before asked.
    It will he seen, from the record, that the probate court of Hinds county was occupied three days in the examination of the vouchers and accounts of defendant, McRaven, to wit, from 17th to 19th January, 1839, inclusive, being a special term ordered for that purpose; and the same being fully examined was allowed, stated and received, and that at the succeeding regular term, the fourth Monday of January, the account was again taken up, received, and ordered to be filed, and said McRaven discharged, &c. The record further shows that McRaven had made publication of his intention to make and present his final settlement to July term, 1838, of said court, and that such publication had been continued under order of said court from that term to the January term, 1839. These facts certainly contradict and disprove the charges in the bill, that the settlement was made hurriedly, hastily, clandestinely, or privately.
    The cases already cited are deemed fully to support the demurrer of McRaven, as well as the plea, &c.
   Mr. Chief Justice Shahkey

delivered the opinion of the court.

The appellants, as administrators de bonis non of the goods and chattels of Hiram Coffee, deceased, filed their bill in the superior court of chancery against the respondents, who were formerly executors of Coffee’s will. McRaven, who had transacted most of the business, it seems, from a record of the probate court, presented his final account as executor, at a special term of the probate court, called for that purpose on the 17th of Jauuary, 1839, when the account was allowed and recorded. At the regular term of the court, on the fourth Monday in January, 1S39, this entry appears to have been made, to wit: “In open court came Joseph A. McRaven, one of the executors of Hiram Coffee, deceased, who, having made publication according to law of his intention of making final settlement with the probate court, at July term, 1838, and said notice having been continued by order of the court from term to term until the 17th of January, 1839, when at a special term of said court, held for that purpose, the said executor produced to said court the same final settlement, together with all necessary legal vouchers ; upon examination thereof by the judge of said court, as is provided by law, and the said judge having been satisfied with the same, examined, stated, and reported said account, and ordered the same to be received ; he, the said executor, is hereby discharged from further liability as executor.”

The complainants set out by stating that Coffee died, leaving a considerable estate in his own right, the debts due amounting to sixty or eighty thousand dollars, besides a considerable amount invested in partnership with McRaven. In support of this allegation, the inventory returned by the executor is referred to. The bill alleges that the mismanagement of McRaven was so glaring as to induce the complainants to take measures for his removal, in which they succeeded, though he was reluctant to' give up the trust. The final account of McRaven, it is said, was suddenly passed without any knowledge of the many inaccuracies it contained, the complainants being uninformed whether the charges were just or not. To enumerate the various charges in the bill is unnecessary. Most of them, if true, show mere acts of maladministration, such as failing to account for the sum of three thousand dollars, which he received of Coffee just before his death ; failing to render a true inventory of the slaves, and with having converted the cotton crops and the proceeds of a wood yard to his own use without accounting. To these and all similar allegations there is a very conclusive answer. The complainants seek relief in their character of administrators. For a devastavit or maladministration, the heirs, or distributees and legatees, may have recourse against McRa-ven if not barred, but the administrators de bonis non can have no such recourse. They are to administer the effects left unad-ministered. This is the extent of their commission. So it was held by the court in the case of Kelsy’s Administrators v. Smith, 1 How. 68. See also H. & H. Dig. 397, sec. 41.

The principal allegation is that McRaven still retains, and refuses to deliver, notes, accounts, &c., which belong to the estate, to the amount of sixty-four thousand dollars. In his final settlement it seems McRaven rendered a schedule of these claims, or at least in his account he referred to such schedule, as being returned, and reported the claims either as insolvent or in suit ; but it is averred that he failed to file the notes, except a very few, which are worthless; and it is also averred that he failed to file the schedule, although it is referred to in his account as filed. These claims, it is said, he is still proceeding to collect or use, and the complainants pray that he may be enjoined from such collection, and decreed to deliver up the notes. This charge is very general, and even vagu.e. No instance is given in which he has collected, or attempted to collect, anything.

Whatever effects, or dioses in action, may remain unadminis-tered, the complainants are entitled to, they being the proper persons to make the collections. But MeRaven meets this charge by demurring to the bill, and by pleading the decree of the probate court, as a final accounting for everything; and the decisions of this court fully sustain such a plea, on the ground that the decision of a court of competent jurisdiction is conclusive between the parties, until reversed. Griffith’s Administrators v. Vertner and wife, 5 How. 736. The law requires that an executor or administrator shall give forty days’ notice of his intention, to make final settlement. This is constructive notice to all parties interested, who thus have an opportunity of contesting the accounts. But besides this constructive notice, the complainants show by their bill that they had' actual notice ; MeRaven was removed from office at their instance, as parties in interest, before they became administrators. They were the actors, the parties who instituted the proceeding which ended in the executors’ final settlement and removal. How then can they complain that his account was suddenly passed ? The record shows the contrary. It shows that a special court was called for the purpose, on the 17th of January, notice having been given in July, and that the account and accompanying vouchers were examined, and approved by the court. It is most unaccountable that the complainants should have been surprised and uninformed as to an account, which they had forced the executor to render, in consequence of having discovered that he was mismanaging the estate. If they had discovered such mismanagement, it is strange that when the executor came to render an account for those acts of mismanagement, when they must be approved or disapproved, they should have been surprised and uninformed as to the correctness of the charges. It may be true, but if so, it shows a degree of negligence which is without excuse. They refer to his inventory for the amount of debts due the estate, and to his final account for the amount which was reported insolvent and in suit, the evidences of which, they say he still retains. It seems, then, that those claims were not omitted in his final account, and of necessity the court must have passed upon the report which he made, concerning them. He had given in an inventory, which furnished the court with a criterion for charging him. He was bound to account for everything inventoried. When he came to settle, he reported a part of the debts so inventoried as insolvent; and the court must have been satisfied, from evidence, that the debtors were insolvent, otherwise he would have been chargeable. If the court erred in this particular, it was an error which might have been corrected in the proper way. But it is said that he failed to file the evidences of debt. This, too, was an error which the court could have corrected, by ordering that they should be filed, but no application was then made. The judgment of the court discharging him, implies that it was founded on proper evidence, that every prerequisite to entitle the executor to his discharge, had been performed, and, like the judgment of any other court, it is conclusive, unless attacked for fraud, which in this instance is denied by answer, and the cause was submitted on the bill, the demurrer, and other pleadings, without any proof. Altogether this seems like an effort to review an administration by bill in chancery, after it has been finally settled in the probate court, where the parties who are now complaining were present in court, and had a full and fair opportunity of being heard.

There is one ground assumed in the bill which might, if properly charged, entitle the complainants to an injunction. It is that McRaven, in 1840, filed a bill in the superior court of chancery, to enforce the lien on slaves which had been sold by him, as administrator, with a view, as it is said, of appropriating the money to his own use. But it does not appear what has become of this proceeding, or how it terminated. He may have failed, or the complainants may have been substituted as complainants. So if McRaven is proceeding to collect other debts, which properly belong to the estate, he may be prevented, as the law substitutes the complainants to all rights which may be necessary to prosecute for claims due the estate. But the charge on this subject is vague and uncertain, not specifying any instance of an attempt to collect. And it is moreover to be observed, that McRaven was allowed a large sum for his commissions ; if that has not been paid, we cannot say that he is not entitled to retain any money which may come to his hands from claims due the estate.

The decree of the chancellor must be affirmed.  