
    BIBB AND WIFE vs. CARPENTER, Adm’x.
    [bill in equity to compel sueeties oe deceased guabdian to account, &c.]
    1. Bill in chancery ; when demurrable for leant of proper parties defendant. A bill filed to impeach a decree of the court of probate, on the final settlement of a guardian, or to charge the sureties of such guardian on his bond for funds which such guardian failed to account for on such settlement, is demurrable, for want of proper parties defendant, when it fails to make the administrator de bonis non of such guardian a party defendant, if within the jurisdiction, and the estate is not utterly worthless.
    2. Same ; when without equity. — A bill which shows that the guardian accounted regularly during his life for his ward’s estate, but died before final settlement, and that the final settlement was made by his representative after death, and when'the decree on such settlement seems regular on its face, is demurrable for want of equity, unless it shows that the decree was erroneous by reason of mistakes or fraud. A mere allegation that there were sums of money in the guardian’s hands unaccounted for, without showing what they were, or fraud or mistake, is not enough to give equity jurisdiction.
    Appeal from Chancery Court of Greene.
    Heard before Hon. A. W. Dillard.
    This is a bill filed by Bibb and wife, as complainants, to compel the sureties of Samuel T. Carpenter, deceased, as the guardian of Mrs. Bibb and her sister Annie, who died in 1865 or 1866, to account for and pay over to Mrs, Bibb certain alleged sums of money remaining in the hands of said guardian, unaccounted for, at his death in 1862, which belonged to her in her own right, and in right of her deceased sister. The bill shows that said Samuel T. Carpenter was legally appointed by the probate court of Greene county in this State, in the year 1856, guardian of Sarah Y. C. Rea, subsequently married to Bibb, one of the complainants in this suit, and Annie Laura Rea, the sister of Mrs. Bibb, and that he gave bond, with Simeon Carpenter, Moses Rosser, M'aclin N. Cockrell and John J. Carpenter as Ms sureties. Mary M. A. Carpenter, the widow of Samuel T. Carpenter, deceased, was appointed ad ministratrix of her husband’s estate, in 1862 ; and the 8th day of September, 1862, she made final settlement of his guardianship to both the Misses Eea.
    The balance in favor of Sarah, now Mrs. Bibb, was $1,420.29, which amount was decreed .to be paid over to her then guardian, James Carpenter, for the ward’s use; and the balance in favor of Annie, who was then still living, was $1,542.26, which was also decreed to be paid over to her guardian, said James Carpenter, for her use. After the death of Annie, said James Carpenter, her guardian, was appointed administrator of her estate on March 15, 1867, and made final settlement of his guardianship of her estate, when the balance found to be due the estate of the ward was $652.16, and this he collected. At the same time, said J ames Carpenter, as the guardian of Miss Sarah Y. 0. Eea, made an annual settlement of his guardianship of her estate, which showed a balance due the ward at that date of $556.71. At these last named settlements, credits were allowed to Samuel T. Carpenter, deceased, on the amounts decreed against his administratrix on her settlement of his guardianship, made on the 8th of September, 1862, of the sum of $763.55 in each settlement, as of the date of these settlements. Sarah married Bibb in 1867, and on the 15th day of April, 1868, J ames Carpenter made final settlement in said probate court both of his administration of the estate of Annie L. Eea, deceased, and of his guardianship of Mrs. Bibb, and paid over the balance in his hands to Mrs. Bibb. There was no objection to these proceedings in the probate court. Mrs. Bibb is the only heir and distributee of the estate of Mrs. Annie X. Eea, deceased. The bill does not allege any mistakes, fraud, or irregularities, or errors, in the accounts and settlements sought to be opened and re-stated, nor does it make the personal representative of Samuel T. Carpenter, deceased, a party to the proceedings as defendant, or otherwise, but it is alleged that the estate of said Samuel T. Carpenter, deceased, had been declared insolvent, and that Thomas C. Clark was the administrator de bonis non of the estate of said Samuel' T. Carpenter, deceased, the former administratrix having died.
    The bill was demurred to for want of proper parties defendants, and for want of equity. The grounds of demurrer were, that the representative of Samuel.T. Carpenter, deceased, and the representative of Annie L. Rea, deceased, were not made parties defendant to the suit, and that there was adequate remedy at law, and the bill did not allege the want of a sufficient remedy at law.
    The demurrer was sustained, but the complainants had leave of the court to amend by making proper parties to the bill. This they declined to do, and the chancellor dismissed the bill absolutely. From this decree the complainants appeal to this court.
    W. Coleman, and R. Crawford, for appellant.
    Bliss & Snedecor, contra.
    
    (No brief came into Reporter’s hands.)
   PETERS, J.

We do not think that there was error in the decree of dismissal. The relief sought is against Samuel T. Carpenter as the guardian of Mrs. Bibb and her sister Annie, and requires an account between said Carpenter or his representative, “ by charging him with all with which he ought to be charged with, and giving him credit with all which he is justly and legally entitled to.”1 And this, too, after his guardianship had been closed by a final settlement, which was not impeached for fraud or mistakes or errors of any kind, and whilst the estate of said Carpenter was unsettled and his representative within the jurisdiction of the court. In such a case the admistrator de bonis non is a proper and necessary party to the bill. The deceased representative was a party to be seriously effected by the decree. The estate of Samuel T. Carter, deceased, was not shown to be utterly worthless, and the sureties were bound only for what his estate failed to pay. — Revised Code, §§ 2450, 3359. The failure to make necessary parties to a bill is a fatal defect on demurrer Phillips v. Threadgill, 37 Ala. 93.

Besides, in this case, the bill shows that there had been a final settlement of the guardianship, and that the funds remaining in the hands of the guardian at the final settlement had been disposed of after his death, or had passed into the hands of his successor in the guardianship, and there is no allegation of error, fraud or mistake. In such case, the decrees of the court of probate are to be treated as final Mosely v. Tuthill et al., June term, 1871.

The decree of the court below is affirmed at appellant’s costs in this court and the court below-.  