
    John D. Neal et ux. vs. Marcus C. Wellons et ux.
    A final settlement and discharge of an administrator, made without giving the forty days’ notice required by statute, is void; and those interested in the estate as distributees, or otherwise, may at any time afterwards, by petition to the probate court decreeing the discharge, move to have that decree set aside and annulled.
    On appeal from the probate court of Carroll county; Hon. James C. Wellons, judge.
    Marcus-C. Wellons and wife filed in the probate court their petition, showing they were distributees of the estate of Thomas Nixon, deceased; that in 1835, Celia Nixon, his widow, since intermarried with John D. Neal, had been duly appointed the administratrix; that the intestate died possessed of real and personal estate, and refer to the inventory and accounts filed; that at the March term, 1839, the final account was filed, and at same term allowed; that notice was not given, as the statute requires, to bring in the parties interested; that the order of allowance was null and void, and all the proceedings coram non judice; that this final account contained items of credit not within the scope of an administrator’s duty, made for the separate benefit of distributees, and allowed as credits against the gross estate; and that the administratrix in said account was allowed as a credit the sum of $2000, alleged to be the value of her dower in certain real estate. The petition prays for an account, and payment of their portion of the estate in defendant’s possession. The administratrix and other distributees are made defendants.
    To this petition a demurrer was filed for defendants, which was disallowed, and they required to answer.
    From this judgment this appeal was allowed.
    Cothran, for appellant,
    Cited 7 How. 188; 3 S. & M. 329; 9 lb. 71; 10 lb. 357, 599.
    Sheppard, for appellee,
    cited Jones v. Coon, 5 S. & M. 767.
    
      Acee, on same side,
    Cited Hooker v. Hooker, 10 S. & M. 599; Turnbull v. Endi-cott, 3 lb. 304; Hendricks v. Huddleston, 5 lb. 427; Smith v. Denson, 2 lb. 339.
   Mr. Justice Thacher

delivered the opinion of the court.

In March, 1848, Wellons and wife, claiming to be distributees of the estate of Thomas G. Nixon, filed their petition in the probate court of Carroll county, charging that Celia Nixon, the widow of Thomas G., and who aftewards intermarried with John D. Neal, having administered upon said estate in 1839, presented her final account of the settlement of said estate to said court, which was thereupon allowed, but that the notice of forty days of the intention of having such account presented to the court for allowance, as required by law, was not given ; and also charging errors to exist in said account. A demurrer to this petition was disallowed, and Neal and wife required to answer thereto, which decree is now made ground of error upon appeal.

A decree of any court affecting and determining the rights of parties, without notice to those parties, or without the notice required by law in such cases, is null and void as to them. It is competent for parties so aggrieved to move such court by fit and appropriate modes of proceeding, to set aside and annul such decree.

In this case, the petition was a proper remedy to reach the cause of complaint; and the court rightly disallowed the demurrer, and put the parties upon their answer.

Decree affirmed, and cause remanded.  