
    Asahel W. Washburn et uxor vs. William Phillips et al.
    A suit upon an administrator’s bond cannot be maintained in the probate court. The remedy thereon is at law.
    The application to the probate court to have an administrator’s bond declared forfeited, and for leave to put it in suit, is intended by the statute to be ex forte in its character; and the sureties on the bond have no right to contest their liability in that stage of the proceeding.
    As a general rule the probate court should, on application, allow the, administrator’s bond to be put in suit; the instances are few in which the leave should be refused.
    W. and others, distributees of the estate of M., filed a bill in the probate court against P. and others as the sureties of S. M. on her administration bond of M’s. estate, S. M. having intermarried with one B. and removed with the property of the intestate out of the state. The object of the bill was to compel B. and his wife to account for the property; the amount due the complainants to be decreed to them, and the bond declared forfeited and put in suit; P. plead that by a former decree of the probate court,, a proceeding against him as administrator of M., which office he once filled conjointly with S. M. but had afterwards resigned, for the same matter and to the same, effect with the present, had been dismissed by the court; this plea was sustained by the court below, and the bill dismissed as to P.: Held, that the plea was improperly sustained ; P. having in the two proceedings been impleaded in different characters, in one as administrator and in the other as a surety of the administratrix.
    Where an administrator has left the state with the property of his intestate, can the distributees of the estate proceed by publication to make such absent administrator a party to a proceeding in the probate court by bill, for an account of his indebtedness to the estate,, and to have his bond put in suit against the sureties ? Qutsre ?
    
    Is not a bill in the probate court by the distributees of an estate, against an administrator and his sureties on his official bond, to have an account of what is due by the administrator taken and to have his official bond declared forfeited and put in suit, liable to demurrer for multiplicity of parties? Qucere?
    
    In plenary proceedings by bill in the probate court against an administrator, jt, is premature to enter a decree, without taking the bill for confessed.
    
      On appeal from the probate court of Yazoo county; Hon-. James R. Burrus, judge.
    Asahel W. Washburn and wife Leonora, and William E. Pugh, administrator of Rhoda Martin, deceased, filed their bill stating, that in 1837 Moultree Martin died intestate, possessed of a large amount of personal property, leaving surviving him Susan Martin, his wife, Leonora Martin, who has since intermarried with the complainant Washburn, Rhoda Martin, who has since died intestate, upon whose estate the complainant Pugh had administered, and Joseph and Adeline Martin, minors, for whom Washington Dorsey was guardian. That at the December term, 1837, of Yazoo probate court, letters of administration on the estate of the said Moultree were granted to Susan Martin and Williafti Phillips, who took into their possession the personal estate of the said Moultree. That at the January term, 1839, of said probate court, Phillips surrendered his letters of administration, and left Susan Martin sole administratrix, and in possession of the property.
    That some time in the year 1838 or 1839, the said Susan intermarried with one David Barber; that neither the said Phillips and Susan, while joint administrators, or the said Susan, while sole administratrix, nor Barber, after he married the said' Susan, had accounted with the probate court, or any person for the personal estate of the said Moultree Martin, but had appropriated the same to their own use. That since the intermarriage of the said Susan with Barber, they had removed from the state, leaving none of the personal property of the said Moultree behind them; that the said Susan gave as securities on her administration bond the said Phillips, Alexander H. Murphy and Andrew Gibbs; that complainants are distributees of said estate, and that they are remediless unless through that court.
    The hill prays that Barber and jwife, Phillips, Murphy and Gibbs, and the said Joseph and Adeline, by their guardian, be made parties defendants; that Barber and wife be compelled to account for all of the personal estate of the said Moultree, which came to the hands of the said Susan while sole administratrix, and for all which came to the hands of the said Barber after the marriage; and that the court will render a decree for what sum may be found due the estate, and will appropriate the same to the distributees as they are entitled by law, and will declare the bond of the said Susan, as administratrix as aforesaid, forfeited, and order the same in suit and for general relief.
    To this bill the defendant, Phillips, one of the sureties oh the administration-bond of the said Susan, pleads in substance as follows : That prior to the filing of this bill, to wit, on the 27th February, 1843, the said complainants, with Joseph and Adeline Martin, by their guardian, did file their bill or petition in said probate court, for the same matter and to the same effect as the said bill now does set forth ; to which bill the defendant did put in his answer, denying that he was in any manner liable as administrator of Moultree, Martin, &c.; and avers that such proceedings were thereupon had in said suit that afterwards the said cause came on to be heard before the said court, upon final hearing, and was heard upon its merits; and that the said court determined that the defendant was not in any way liable as the administrator of said Moultree, or upon the administration-bond executed by him and others as set forth in the pleadings, which bond was the same set forth in this bill; and further avers, that the court, by its detiree, did finally dismiss the aforesaid bill or petition, which decree is still in force, and therefore he pleads the said former bill, answer, proceedings, and decree in bar of the said complainants’ present bill, &c., prays judgment, &c. To which plea the complainants replied, that the material allegations and averments, set forth in the plea of the said Phillips, are not true as set forth in said plea, and this they are ready to verify by the record, &c.
    The bill which is plead in bar is spread out in the record, and is in substance as follows:
    A. W. Washburn and wife Leonora, Joseph Martin and Adeline Martin, by their guardian Washington Dorsey, and William E. Pugh, administrator of Rhoda Martin, allege, that in 1837 Moultree Martin died, leaving surviving him the complainants and Susan C. Martin, (who has since married David Barber,) his wife, his heirs at law. That at the December term, 1837, of Yazoo probate court, letters of administration on the estate of the said Moultree were granted to the said Susan Martin, now Susan Barber, and William Phillips, who gave bond with A. H. Murphy and Andrew Gibbs, their sureties; that they took into their possession the personal estate of the said Moultree, and the said Phillips made an inventory, for which he has in no manner accounted; that at the January term, 1839, said Phillips made his final settlement, in which he shows that he had paid debts to the amount of $2195 31, and that he had received of the rights and credits $1688 65.
    The bill then prays that the said bond may be declared forfeited, and ordered to be put in suit for the benefit of all concerned ; and that the court will compel the said William Phillips to account for all the property, of every kind whatsoever, which came to his hands as administrator of the said Moultree Martin, and that the court would enter up a decree against the said William Phillips, as aforesaid, &c., and for general relief.
    To which bill the said William Phillips filed his answer, in substance as follows : He admits the death of Moultree Martin, as stated, and that the complainants and Susan E. Martin, now Barber, are his heirs at law; admits the granting of letters of administration on said estate to the said Susan and himself as staled, but does not recollect that he ever rendered any inventory of said estate, but says the paper filed and called an inventory was an appraisement; does not know who filed this paper in court; has no recollection he did, and insists on proof; admits the property mentioned in it was the property of Moultree Martin, but denies he took it into possession, unless the following facts constitute possession : —At the death of said Moultree, his widow before administration had all the property in her possession ; after the grant of letters to the widow and himself, she still retained the same in her possession; never had it in his individual possession, nor under his control; that he never considered himself responsible for said property; that he considered his co-administratrix as much entitled to possession as he was, and that each was liable for his own acts. Under this belief he ' presented his accounts for settlement, as stated in said bill, and the said court passed upon and allowed them. That upon said final settlement, he was discharged from his office as administrator, and he has had nothing to do with said estate since, nor after that was he entitled to the possession of said slaves and other property mentioned in said appraisement, but the same was then in the possession of his co-administratrix and her husband, Barber, and being in possession, said Barber removed said property to parts unknown, and what has become of it this respondent does not know. He relied as a bar to said petition upon the order and decree of said probate court as aforesaid, and insists that the same is final and conclusive. He submits whether he is responsible for the acts of Barber and wife, since his discharge aforesaid from his administration, and for the acts of said Susan before her marriage with the said Barber; and whether said final settlement and discharge is not conclusive that he is not liable to complainants, &c., and prays to be dismissed.
    Upon this answer and proofs, the court dismissed this bill with costs, and made the following order :
    “ A. W. Washburn and wife Leonora, Joseph and Adeline Martin, by Washington Dorsey, guardian, William E. Pugh, administrator of Rhoda Martin, against William Phillips, administrator of Moultree Martin: —
    This cause coming on, &c. it is ordered, adjudged and decreed, that the bill or petition of petitioners be dismissed; and it is further ordered, that the defendant recover his costs, &c.”
    On the trial of the present cause upon this plea of the defendant, the court below sustained the plea and dismissed the bill as to Phillips, the security, and directed the clerk to take an account of the transactions of Barber and wife, and ordered the bond forfeited as to the others.
    An order of publication was made against Barber and wife, and the proof of publication filed; but the bill was not taken for confessed either as against them or the other defendants who did not answer. The complainants prosecute this appeal.
    
      
      W. E. Pugh, for appellants.
    The only question which arises for the consideration of this court is, was the dismissal of the bill filed by Washburn et als. against William Phillips, as administrator of Moultree Martin, a bar to the recovery on the bill filed by complainants against Barber and wife, as administrators of Moultree Martin ? Most clearly not.
    Phillips and Susan Martin administered on the estate of Moultree Martin. Susan married Barber, and Phillips resigned his letters. The complainants filed their bill to compel Phillips to acéount; he show's that he had accounted, and if he ever had the negroes in his possession, he delivered them over to Barber in right of his wife, who was administratrix, and thus discharges himself from responsibility; upon which showing, the court dismisses the bill. The complainants, finding that Phillips had paid over to Barber and wife, or Susan Martin, administratrix, files their bill against them, and makes the securities to the bond of Susan Martin (now Barber) parties defendants, among whom William Phillips, the former administrator, happens to be one of the securities. Phillips comes in and pleads a former judgment in bar. Upon the inspection of the former record, which is plead in bar, Phillips alone is sued as administrator, and not Barber and wife, and Phillips only notified as a security on her bond. Upon the facts in this canse I cannot see any pretence upon which to sustain the judgment of the court below, and feel confident this court will not hesitate to reverse it.
    
      George S. Yerger, for appellees.
    In this case, the issue having been found on the plea of former decree, as it was obliged to be, from the record of the previous proceeding, I see no reason why this court should reverse the decree. If the former decree was wrong or erroneous, they might have brought it up for revision, but they did not; it still is in full force and effect, and being so, was properly pleaded.
    Whether the first case was or was not correctly decided, cannot now be examined; the question was settled. The case was however decided right. The case in Hopkins’s Reports is clear, and the act of assembly authorizing the discharge of company administrators, &c. shows such to be the- law of Mississippi. H. & H. 416, sec. 106.
   Mr. Justice Clayton

delivered the opinion of the court.

This was a bill filed by the appellants in the probate court of Yazoo county, stating that they are distributees of the estate of Moultree Martin, deceased; that William Phillips and Susan Martin administered on the same ; that Phillips afterwards surrendered the trust, and was discharged by the court, and that thenceforward Susan Martin was sole administratrix, until her marriage with the defendant, David Barber. That they have removed themselves, and all the property of the decedent out of the state. That the said Phillips, Alexander H. Murphy and Andrew Gibbs, are her sureties in the administration-bond ; prays that said Barber and wife may be made parties by publication ; that they be compelled to account, and the amount due to complainants decreed to them, that the bond may be declared forfeited and put in suit for their benefit.

Phillips appeared and filed a separate plea to the bill, alleging in substance that the present complainants, together with others, formerly filed a bill in the same court, for the same matter, and to the same effect, against the defendant Phillips, and that upon full and final hearing the same was dismissed by the court. This plea was sustained by the court, and the bill dismissed as to Phillips, but retained as to the other parties, and the bond directed to be put in suit as against them.

The proceeding, which is thus pleaded in bar of the present bill, is made a part of this record. It is against Phillips .as administrator, and seems to require, though it is not very easy to determine what it does require, that he should be compelled to settle his account as administrator, and that for any balance which might be due from him, a decree should be rendered, and that the bond for the administration should be declared forfeited, and directed to be put in suit. On the hearing, it appeared that the estate was in debt to Phillips, and the bill was therefore dismissed.

It is very manifest that Phillips is now before the court in a different attitude and capacity from that in which he appeared on the former occasion. Then he was a party as administrator in a course of proceeding entirely legitimate; now he is brought before the court as a surety in an administration-bond, for what purpose we are not given to understand. It is certainly the law, that a suit'upon the bond cannot be maintained in the probate court. Green v. Tunstall, 5 How. 638. Why he and the other sureties were made parties to the bill we do not know, for no decree can be rendered against them. The remedy upon the bond is at law. The application to have the bond declared forfeited, and for leave to put it in suit, is intended by the statute to be ex parte in its character, and the sureties have no right to contest their liability in that stage of the proceeding. It is a mere preliminary step, with which they have no right to interfere. The instances are few in which the leave should be refused.

The plea of Phillips was improperly sustained, and the order of the court must therefore be reversed.

The decree goes on to direct, that as to all the parties except Phillips the bill should be retained; that the clerk take an account of the transactions of the administrators, and that the bond be declared forfeited and put in suit. There was no order of the court taking the bill for confessed, nor was there any appearance as to the other parties. The bill seems intended to make a regular plenary proceeding by bill; it was therefore premature to enter a decree without taking the bill for confessed. H. & H. 472.

It may be doubted whether the probate court, in a case like this, is authorized to proceed by publication. The question may be asked, too, if the bill be not liable to demurrer for multiplicity of parties. On these points we give no opinion.

The decree of the court will be reversed, the plea of Phillips disallowed, and the cause remanded to stand as it did before the plea was filed.

Decree reversed.  