
    John M. Clement vs. Thomas Hawkins.
    Where two parties each claim to he the owner of a judgment, and the court of chancery decides in favor of one of the claimants, and decrees the judgment debtor to pay him, without the judgment debtor having been made a party to the proceeding in chancery, the decree as to the judgment debtor will be a nullity.
    The power of the probate court over an administrator extends only to the assets belonging to the estate; and it can make no allowance other than that which is properly chargeable against the estate ; where, therefore, the probate court directed an administrator to deliver up to the widow of his intestate a note which the administrator had taken, payable to himself, as administrator, for the rent of land of the intestate ; which land had been after-wards allotted to the widow as dower; and the administrator refused to obey the order; held, that the court of chancery had no power to enforce obedience to the order ; which the probate court had no jurisdiction to make.
    In error, from the chancery side of the circuit court of Holmes county; Hon. Morgan L. Fitch, judge.
    Thomas Hawkins alleges in his bill that James Higgins died in 1838, intestate. Johnson and West were appointed administrators. Higgins was possessed of large real estate, among which was a plantation near Tchula, on which he resided at the time of his death. That his widow afterwards married J. 0. Harrington ; and the probate court, at its May term, 1840, assigned by decree to Harrington and wife the plantation for her dower in the lands of said Higgins. That the plantation was rented out by Johnson and West, administrator?, for the year 1839, for the sum of.$471 22, for which a note, payable to them as administrators, with securities, was given. Suit was brought and judgment recovered in the Holmes circuit court for $>539 52, on this note: on which $152 was paid. That Johnson and West had resigned their administration, and John M. Clement, the defendant, was their successor. That the probate court made a decree in February, 1843, ordering this defendant to deliver up the said note, or the proceeds thereof, to Harrington and wife; and that the defendant should have a credit to that amount. That the right to the judgment had been duly transferred b'y Harrington and wife to complainant; and that Higgins’s estate is insolvent, and the proceeds of the note will be lost to complainant, if they go into the hands of the administrator. That the defendant refuses to comply with the order of the probate court: The bill prays an injunction, and that defendant be decreed to transfer to complainant the judgment, and perform the sa'id order of the probate court.
    The answer of Clement admits substantially the allegations of the bill, but denies that the probate court had any jurisdiction over the case, and asserts that the order was a nullity. It sets up, also, other matters, which it is not deemed necessary to notice. There also appears by the record to have been a demurrer to the bill, as the record recites that the demurrer of the defendant was overruled,
    The case was submitted on bill and answer, and the circuit court decreed in accordance with the prayer of the bill; that the injunction prayed for be made perpetual; that the judgment should be assigned, and that the defendants therein should pay the complainant.
    From this decree, Clement prosecuted this writ of error.
    Brooke, for plaintiff in error.
    1. The bill shows no title to. the note in question in Mrs. Harrington, the remote assignor of complainant, and should have been dismissed on demurrer.
    
      2. The decree is erroneous, because it orders the payment of money by a person who is not a party to the bill. The estate for life did not vest in the widow until she was put in possession by the commissioners appointed by the court to allot her dower. How. & Hutch. 252, § 43. Of course it could have no relation back to cover a claim for the rent of the premises prior to such rendition. At common law there were no damages for dower, but by the statute of Merton (20 Hen. III. ch. 1,) damages were given against the heir or devisee for deforcement, from the death of the husband until the assignment, when dower was withheld. But by the common law, at the time of the passage of this statute, as well as now, it was the duty of the heir or devisee to allot dower, and the statute gave the damages as a penalty for the neglect of this duty. But under our law no such duty is enjoined upon either the devisee or heir. The only way in which dower can be assigned or allotted, is by decree or order of the probate court, which decree or order is to be had on her own application, in a summary manner. /As a matter of course, when she delays such application, no one is responsible to her in the way of damages.
    3. The widow’s right to the rent is urged on the ground that the statute authorizes her to hold possession of the mansion house and plantation until dower is assigned her. To this it is answered, that this is a mere personal right, attaching to her only so^ong as she is actually on the premises. And this right or personal privilege seems here to have been waived, from the very fact shown by the bill, that the administrators of the husband had possession of the place, and rented it. In the case of Grayson and Wife v. Moncure, 1 Leigh, 449, a claim of this kind, made under a statute similar to ours, was not recognized by the court of appeals.
    4. Whether the administrators of Higgins were the proper persons to receive the rent is not now the question. If they were not, the heirs of Higgins, in whom the fee vested, are the only persons to contest it.
    5. It is admitted that all the interest of Mrs. Harrington to the note was transferred to the complainant. But it appears that the note has all the time been held by the administrators, adversely to her, and never has been, in her possession. And is such a claim or interest assignable by her, either in law or equity ?
    6. It is further contended, that if Mrs. Higgins or Mrs. Harrington ever had any right to the rents and profits of the land prior to her assignment of dower, it exists as a personal claim against Johnson and West, the former administrators, and not against the note, in specie, in the hands of Clement, the administrator de bonis non. The note, and the judgment on it, has come into his hands as part of the assets of the estate, and cannot now be separated from the rest.
    7. The decree of the probate court, referred to in the bill, is either valid, or it is not. If valid, that court has the power of enforcing it, and the complainant has no occasion to resort to a court of chancery; if not valid, its rendition cannot affect the case one way or the other.
    8. The decree itself, without reference to the merits of the case, is manifestly erroneous. It orders the makers of the note in controversy, the defendants in the suit at law, to pay the same to the complainant. They are not parties to the bill, and therefore not bound to obey such order. In the mean time the hands of the complainant are tied up by an injunction, from proceeding on the judgment." For these reasons it is respectfully contended that the decree of the circuit court should be reversed.
    9. For further authority on the subject of the widow’s right to damages, before assignment, see 4 Kent, 65. By the statute of Merton, before referred to, damages are allowed only from the time.of making the demand of the heir. Ib. See also TFai-lis v. Smith and Tipton, 2 S. & M. 220.
    10. There is nothing in the objection of defendant in error, that the defendant in the court belo\y waived his demurrer by answer, and that therefore this court cannot consider of it. This question has already been here decided in reference to a demurrer at law, and it is presumed the same rule will apply in chancery practice.
    Lansdale, for defendant in error.
    1. It is contended by the defendant in error that the plaintiff, by withdrawing his demurrer, and answering, must be bound by the issues tendered in his answer.
    2. The probate court had full jurisdiction of the matter, as it properly arose out of the duties imposed upon the plaintiff in error, as administrator.
    
      3. We think that in a court of equity, at least, a widow is entitled, at any rate, to rent upon that portion of her husband’s land that would be assigned to her for dower, until dower is assigned, and that her transfer of the claim would make it proper that her assignee should go into a court of chancery, to have the benefit of it. In the case cited from Leigh’s Reports, that principle is clearly settled.
   Mr. Chief Justice Shaeeey

delivered the opinion of the court.

The object of this bill was to enforce an order of the probate court of Holmes county. It seems that James Higgins died in 1838, and in 1839 his administrators rented out the plantation on which he had lived, taking a promissory note from the tenant, on which they afterwards sued and recovered judgment. In May, 1840, the probate court allotted to the widow of Higgins this same plantation, for her dower, in lieu of dower in all his lands. In February, 1843, the probate court decreed that Clement, the administrator de botiis non, (the first administrators having resigned,) should deliver to the widow the note, or the proceeds, on the ground that the administrators had no right to the money, and that the note had been improperly given to them instead of the widow. The bill charges that Higgins’s estate is insolvent, and that Clement refuses to obey the order of the probate court, and prays for an injunction, and that he may be decreed to transfer the judgment to the complainant, who is assignee.

Clement, it would seem, first demurred, as there is an order overruling his demurrer, and then answered, denying the validity of the order of the probate court, but the circuit court decreed that the judgment should be assigned, and that the injunction should be made perpetual, and also that the defendants in the judgment should pay the complainant.

It was manifestly erroneous to make a decree against the judgment debtors ; they were no parties to this bill, and the decree as to them was a nullity. The bill was defective in omitting to make them parties.

But in other respects the proceeding was erroneous. The object was to enforce the decree of the probate court. If the widow was entitled to the rents, the probate court was not the proper place to seek redress. If the note, or the money received for rents, was not assets, and the court decided that it was not, then that tribunal had no jurisdiction. Its power over the administrator was confined to the assets belonging to the estate, and it could make no allowance other than such as was properly chargeable on the estate. Jones v. Coon, 5 S. & M. 751. If, on the other hand, the rent was received by the administrators, and constituted assets, then the widow was but a creditor, and stood upon the same footing with other creditors. There was, then, no foundation for the proceeding, on the chancery side of the circuit court.

Decree reversed, and bill dismissed.  