
    John H. Garrett, Administrator of Elizabeth Day, Deceased v. John Day, Administrator of James Day, Deceased.
    A mistake in a former decree, in a case where the same persons were parties, but on a point in which their interests at that time were not in litigation, is not conclusive upon the parties, in a subsequent suit, where that point comes in litigation between them.
    William Hall died intestate in 1812, leaving a widow, Elizabeth, and four children. The widow administered upon his estate, and afterwards intermarried with James Day, who thereby became administrator in right of his wife, and also became possessed of the personal estate.
    Upon proceedings had in the court of equity in 1817, between the distributees of the estate of William Hall deceased, the real estate was sold by the commissioner of the court; and James Day became the purchaser, and gave his bond for the whole amount of the purchase money, without deducting his wife’s share ; and afterwards, and before the bond became due, or any part had been paid thereon, James Day died ; and his wife surviving him administered on his estate, together w'lh *J°hn Day. Afterwards in September, 1820, the widow, Elizabeth Day, died intestate ; and John H. Garrett administered alone upon her estate. In 1821, a bill was filed by John H. Garrett and wife, and others the children of William Hall, deceased, against John Day as administrator of James Day (who was administrator in right of his wife, and was possessed of the estate of William Hall deceased,) for the purpose of recovering their distributive shares of their father’s estate, as well real as personal. In that case, upon an appeal from a decision of the circuit court, upon exceptions to the report of the commissioner, the court of appeals in Columbia decided in substance, that the purchase made of James Day of the real estate of William Hall deceased, and giving his bond for the purchase money, without having deducted his wife’s share, or having paid any part in his lifetime, was not such a reduction of her interest into possession, as would vest it in him absolutely, in virtue of his marital rights; but her interest survived to her; and was subject to distribution under the act of 1791.
    But upon a settlement of this case, the administrator of James Day was allowed and permitted to retain in his hands the one-ninth part (amounting to §576 80 cents, with interest from the 5th of October, 1819,) of the whole amount of the sales of William Hall’s real estate, on the mistaken supposition that James Day had survived his wife, and was therefore entitled to one third of her third of that estate. In this suit between the children of William Hall as complainants, and the administrator of James Day, defendant, the rights and interests of the estate of Elizabeth Day were unattended to, and entirely unrepresented, inasmuch as the attainment of the objects of this suit left her estate clearly unaffected. The present bill was filed by John Day as administrator of James Day, against John II. Garrett as administrator of Elizabeth Day, for the purpose, among other tilings, *ofeffect-ing a permanent settlement between their respective estates.
    The commissioner made out a report of the mutual accounts of the two estates, and refused to allow the above sum of §576 80 cents, as a credit to the estate of Elizabeth Day. The defendant Garrett filed exceptions to the commissioner’s report on the following grounds :
    First. That the commissioner did not give credit to the estate of Elizabeth Day for the amount of one-ninth of the purchase money and interest arising from the sales of lands belonging to the estate of William Hall, deceased, which was received by the estate of James Day, on a settlement with the distributees of Hall’s estate.
    Second. That this amount, although received by the estate of James Day on a settlement with Hall’s distributees, was received for the benefit of the heirs or representatives of Elizabeth Day, inasmuch as it never vested in James Day in his lifetime, his wife Elizabeth being the survivor, and the land being part of her inheritance.
    Chancellor Thompson at June term, 1825, overruled the exceptions; from which decision the defendant John II. Garrett appealed, on the grounds made in the exceptions to the commissioner’s report.
    Bauskett, for the appellant,
    cited 1 Phillip’s Ev. 263. 3 Day’s Rep. 138.
    Butler and Thompson, contra.
    January, 1827.
   Curia, per

Colcock, J.

The question presented for our determination is, whether John Day, as administrator of his brother’s estate, shall be allowed to retain in his hands the one-ninth of William Hall’s estate, which was decreed to him in the decision of the first case, on a mistaken view of the facts of that case ? That the facts *were mistaken, admits of no doubt. It is shown to the by John Day himself, who is now filing- a bill against John H. Garrett as the administrator of Elizabeth Day, to account for property purchased by her at the sale of her husband James Day’s estate ; and in the decree delivered by Judge James at the May sitting of the court of appeals for 1823, he states expressly, that the wife died before the husband. It would be difficult to meet the justice of this case if the parties stood before us in the same situation in which they stood before the court which made that decree. But their situations are materially changed, and therefore, I think justice can be done without any violation of those wholesome and well established rules, by which parties are prevented from reinvestigating the judicial decisions of the country. John Day is now the applicant to this court to compel John IT. Garrett to do equity: and I think we have a right to say, “we will not aid you without requiring that you yourself shall also do justice. It is true that you have obtained a decree for one-ninth of William Hall’s estate; but you show us that it was improperly obtained, perhaps not by fraud, but clearly by a mistake.” But, it is replied, the mistake might have been rectified by the present defendants. They rejoin, it was not incumbent on us to do so on that occasion ; for we were then asking for our share of our father’s estate; but now we are asking for our share of our brother’s. Then we received all and perhaps more than we were entitled to, as our portion of our father’s estate. We had nothing to complain of: what you withheld was a part of our mother’s share of her husband’s estate, which we were not then claiming, and which could not have been adjudged to us : first, because it was not asked for, and secondly, because no administration was granted to us of her estate.”

It is contended by the complainant’s counsel, that if *the sum allowed to the defendants, it will be reversing the decision of the former court : but it is not so in fact. The decree stands : we do not pretend to reverse it. We say to the complainant, “you have obtained a decree, by which the rights of one not before the court were affected. That which you claimed for your brother was your sister’s : and although you then had a right to withhold it from the defendants, you have no such right now.” To illustrate this matter further. Suppose a proper view of the facts had been taken at the time of the first decision. Hall left some children and a widow; the children were entitled to two-thirds of his estate, and no more. And this was the only question which the court were called on by the pleadings to decide. The widow was entitled to one-third ; but whether James Day, her second husband, had acquired a right to the whole, or only to a part of her third, was not a question made; and the determination on that point was gratuitous, extra-judicial, and made on a mistaken view of the facts. James Day had not so reduced to possession his wife’s portion of her first husband’s estate as to be entitled to any part of it, and he died before his wife; so that her rights remain as though she had never been married to him. Her representatives are now entitled to the third of their father’s estate which belonged to their mother: consequently, the sum which John Day retained as his brother’s is now the properly of the defendants. As to what disposition the administrator may make of the property which may come into his hands, is not now a question to be considered by the court.

The decree of the chancellor is reversed ; and the accounts again referred to the commissioner, to be adjusted on the principles of this decree.

Decree reversed.  