
    Wiley Quinn et ux. vs. Walton Moss.
    The payment of a legacy to an infant is at the lisle of the executor or administrator who pays it, and does not discharge him from the repayment on the petition therefor by the infant; who will be entitled to recover the same, without accounting for what he has already received.
    Whether the prochdn ami of an infant, who sues in the probate court by his next friend, for a legacy to the infant, be a competent witness or not, yet his testimony being addressed to the court, will not, when adverse to the interests of the infant, affect the validity of a decree in the infant’s favor. Where a petition for a legacy is filed in the probate court, and the defendant puts in a plea, to which the petitioner replies, and the defendant, without taking issue on the replication, files an answer to the petition, and the case is decided on petition, answer and proofs, it seems it will be a waiver of the plea and replication and previous proceedings.
    A petition for a legacy, against the administrator of the testator, need not describe him as administrator cum testamento annexo; or show in wha,t ' manner he became administrator ; it is sufficient if it describe him as administrator.
    To a petition for a legacy, against the administrator of the testator, the defendant plead that the will had been annulled and set aside by the probate court, and a distribution ordered among his heirs of the property of the testator ; the petitioner replied, that the revocation by the court of the probate of the will was without an issue to try its validity, or notice to the petitioner or any one else, was without proof, and therefore void ; held, on demurrer to the replication, that it was a good answer to the plea.
    In error from the probate court of Choctaw county; Hon. John Snow, judge.
    Walton Moss, by his next friend, Nathaniel Moss, filed his petition, stating that Johnson Moss, by his last will, bequeathed' to petitioner eight hundred dollars. This will, on the 22d of May, 1841, was duly proved in the probate court of Choctaw county, where Moss died; no executors were named in it. Wiley Quinn, and Nancy his wife, late the widow of Johnson Moss, had been appointed administrator and administratrix of his estate, and, as such, possessed themselves of all his estate; that there are funds of the estate on hand to pay the legacy; he has often demanded it in vain; is ready, by his next friend, to give a refunding bond; is married, and needs the money; defendants refuse to pay it; and he prays that payment may be ordered.
    He filed a copy of the will, showing its due probate and record, on the 31st of May, 1841, in the probate court of Choctaw county.
    The defendants demurred to the petition, because it did not describe the character in which they were administrators. This being overruled, they plead, in substance, that the probate of Johnson Moss’s will, in May, 1841, had been set aside by the probate court in July, 1841, and a division of his property ordered among his heirs, which they had made. To this petitioner replied, that the order setting aside the will was made without notice to petitioner or any one else, without an issue to try its validity and without proof. To this replication defendants demurred; the demurrer was overruled, and on leave given, the defendants answered.
    They admit the will and their general administration, but insist that they have paid the legacy; and the payment was allowed by the court at its May term, 1843, when they had a final settlement with the court, a copy of which they exhibit; and which they insist discharged them from further administering and accountability to the probate court.
    The account rendered at the alleged final settlement contained this item: “By special legacy paid Walter Moss, ordered by the will, with interest thereon, $ 917'” At its conclusion were these words : “May term, 1843. This account having been reported for allowance, and the same having been advertised according to law, and no exceptions made thereto, it is therefore ordered and decreed that the same be allowed in all things as therein stated, and that the same be recorded. Ordered by the court, that the final settlement- of the administrator and administratrix, accounting in full for all the estate, both real and personal, of the said estate, be and the same is hereby received, allowed, and ordered to be recorded.
    
      “ Be it further ordered, that the said administrator and ad-ministratrix of said estate be discharged so far as the statute will allow, and that they pay no further debts against said estate, of claims held by citizens of this state, with the exception of court fees; and after sixteen months, to pay no claims held by citizens of other states against said estate.
    “ Be it further ordered, that the said administrator and ad-ministratrix, (there being suits pending against said estate,) pay no further sums to the distributees of said estate, without an order of this court.”
    Nathaniel Moss testified, that he was the father of the petitioner; the legacy had never been paid to him (Nathaniel.) He had once employed an attorney to collect it, and had promised to give him five per cent, to do so; the legacy had been collected. Exceptions were sealed to his admissibility by the defendants.
    The probate court decreed the legacy to be paid by defendants, and they appealed.
    
      Acee. for appellants,
    Cited 2 S. & M. 30; 1 Murphy, 99; 4 Dev. 430; Jacob v. Pul-liam, 3 J. J. Marsh. 200; Coiuden v. Dobyns, 5 S. & M. 82; 7 How. 808; 1 S. & M. 546; Harper v. Archer, 9 S. & M. 71; Hooker v. Hooker, 10 S. & M. 599; Stubblefield v. McRaven, 5 S. & M. 130; Jones v. Coon, 5 S. & M. 751; Griffith v. Verifier, 5 How. 736; Gildart v. Starke, 1 How. 450; Washburn v. Dorsey, 8 S. & M. 214.
    
      Huie and Greenwood, on same side.
    
      Gidon and Baine, for appellee,
    Cited, 5 Paige, Ch. R. 303; Cook v. Bay, 4 How. (Miss.) 485 • 1 S. & M. 22.
   Per Curiam.

Moss filed his petition in the probate court, to compel the appellants, as administrator and administratrix of Johnson Moss, to pay a legacy of $800, left by the will of Johnson Moss to petitioner. During the progress of the cause, technical objections were raised, first, by a demurrer to the petition, then by plea, and then by demurrer to the replication to the plea. In both instances the decisions of the court on the demurrers was correct. Instead of taking issue on the replication to the plea, the defendants below filed an answer; all the intermediate proceedings may therefore be laid out of view, and the case considered as presented by the petition, the answer, and the proofs.

The answer sets up, in bar of petitioner’s right, a final settlement of the estate, and a discharge of the administrators. It also avers positively, that the legacy, has been paid, and refers to the final account, in which the administrators are credited “by special legacy paid Walter Moss, ordered by the will with interest thereon, $917'.” The final account was approved by the court, but the administrators were not finally discharged ; on the contrary, certain rules were prescribed to guide them in their future conduct. It is now insisted that the final account was conclusive, and could not be opened at a subsequent term. The answer to. this is, that there is no effort to open or set aside the account. Admit it to be conclusive, then, as to every thing shown by it, does it constitute a bar to the petitioner’s right? No item of the account is disputed; no inaccuracy complained of; but on its face it is no bar to the plaintiff’s right to his legacy. It only proves that it was paid to him, and such payment does not amount to a discharge. The petitioner is an infant, and no payment of a legacy to a minor is valid, and the executor will be compelled to repay it. 1 Roper on Legacies, 589. Even on the case then made by the answer, which does not deny the infancy, the petitioner was entitled to a decree. But it is said that the prochein ami was improperly permitted to testify; but he proved nothing, except that the legacy had been paid, and that was testifying against his interest. His testimony is at most only cumulative; but in truth it proves nothing in the least important in the controversy. Besides, it was addressed to the court, not to a jury, and for these reasons furnishes no grounds for reversing the judgment. In Hill v. Anderson, 5 S. & M. 216, we held that if an infant sue to recover back specific property sold by him, he must refund what he has received, but this rule cannot be applied here. This seems to have been a payment in money, and was made at the wish of the administrator.

Decree affirmed.  