
    Henry W. Ragland vs. A. R. Green et al.
    Where the will of the testator, though attested by the proper number of witnesses for the valid disposition of real estate, is proved only by one of the witnesses, it will not afford sufficient foundation for the devisee under the will to assert title, in a court of equity, to the real estate, against others claiming title under sales by the representatives of the testator.
    
      Nor could a court of equity, had the will been lawfully probated, entertain jurisdiction of such a bill, as there would be no question involved but that of the legal title.
    Where a will was presented and proved by a single witness, and subsequently the probate set aside ; and letters of administration granted upon the estate, which was disposed of by the administrators in the due course of administration : it was held, on a bill filed by the legatees, under the will, against those claiming portions of the personal estate by virtue of purchases from the administrator, that though the proceedings of the probate court, in the setting aside the probate of the will, may have been absolutely void, yet the grant of letters notwithstanding the will, though irregular and improper, would be within the jurisdiction and power of the probate court; and the acts of the administrator, and the course of administration withirf lawful limits, could not be questioned by the court of chancery, and would be valid until set aside by some authorized tribunal; and therefore the purchasers from the administrator would be sustained in their purchases.
    But in no event could the legatees recover the personal property sold by the administrators, without being compelled to pay the purchasers the price paid for the property; inasmuch as that price paid to the administrator became assets of the estate, and subject to appropriation to the payment of its debts; and thus to the' exoneration of the legacies.
    The court of chancery has no jurisdiction to order an account to be talten of the proceedings by an administrator ; that is exclusively for the probate court.
    The probate court, alone, has jurisdiction of suits to recover legacies and distributive shares, where the proceeding is against the representative.
    Appeal from the vice-chancery court at Monticello; Hon. James M. Smiley, vice-chancellor.
    The bill, filed June 6th, 1843, states, that Henry Ragland, of Pike county, about the 28th day of March, 1819, made his last will and testament, and thereby devised to complainant two negroes, Daniel and Caroline, and lent to his wife, the mother of complainant, the plantation, and two other negroes, Peter and Dolly, which, at the expiration of a stated period, were to become the property also of complainant, and shortly thereafter died; thereupon said will was duly proved by one of the attesting witnesses, and filed and recorded, and a copy is produced as exhibit A ; that complainant was a minor at the death of his father, not exceeding three years old, and that his mother died before he reached the age of fifteen, and that at the age of eighteen he removed to the republic of Texas; that he was about twenty-five years of age, about the 22d day of September, 1842.
    Charges that there was never any decree of any proper court, declaring said will void, and that neither he nor any person for him had notice of it; he never received any of the property devised, nor any of the proceeds thereof. He then proceeds to state who is in possession of the land and slaves, and prays that the parties in possession may be made defendants, and for an account of what is due to complainant for the rents and hires, and of the value of said slaves and lands respectively; and that the lands and slaves be given up, &c.
    The exhibit to the bill showed that the will was signed and sealed by-the testator, in the presence of Edward White, Joseph Cathings, and Henry Long.
    This is the affidavit to probate it:
    “State of Mississippi, Pike county. Personally appeared Henry. Long, before the orphan’s court of said county, and after being duly sworn'in open court, deposeth and saith, that he was a subscribing witness to the within instrument of writing, with Edward White and Joseph Catchings; and that he saw Henry Ragland assign his name to the said within instrument of writing, and heard him acknowledge the same to be his hand for the uses and purposes therein mentioned. Sworn to and subscribed in open court, the 28th day of February, 1820.
    “ Henry Quin, Reg. O. C. Henry Long.”
    The will was recorded 25th day of March, 1820. Two days after, the following order was made, to wit ':
    “Ordered, that Esther Ragland and Garrett M. Allen be allowed letters of administration on the estate of Henry Ragland, deceased. Ordered, that James C. Dickson, Philip Catchings, and Elbert Burton be appointed appraisers to appraise the said estate. Ordered, that the last will and testament of Henry Ragland, deceased, which is recorded in the Register’s Office, be revoked, and the same is.hereby null and void.”
    Letters of administration, &c,: “ Whereas, Henry Ragland, deceased, late of said county, died testate, as we are informed; but for good reasons, said court hath set aside the will of said deceased, and do hereby grant to Esther Ragland and Garrett M. Allen full power, &c., 27th March, 1821. Ordered, that Esther Ragland be hereby released from the executorship of the estate of Henry Ragland, deceased.”
    A. R. Green and wife, two of the defendants, demurred to the bill; the demurrer was sustained.
    The answers of the other defendants show how they severally became possessed of the land and slaves under the administration of the estate as granted by the probate court, and the records of the probate court and proof sustained.the title thus derived. It is not deemed requisite to set them out more in danfel..The court below dismissed the bill, and complainant %
    
    
      D. C. Glenn, for appellant.
    1. The probate of this will, by a courtfof compere®! tion, was final and conclusive. If illegaW"wr^feKgj)erly ®6td it could only be corrected on appeal, and^^mfil scP was binding as well on the court as on the was a matter of record, which was notice to all the world ; any administration granted until this probate was legally set aside, was an act on a matter coram nonjudice, and utterly void, and not voidable merely, inasmuch as the court had no jurisdiction in the premises, which is a fundamental and fatal, objection, at all times, at any length of time, and under any and all circumstances. Consequently, it vitiates not- only the act of the court itself, but also every act done and every right arising from such void procedure. Therefore, the administration in this case was void ; the sales of the administrator were void, and conveyed no title, and complainant is entitled to the relief sought. On these . points, I refer the court to Holyoke v. Haskins, 5 Pick. 20; Messinger v. Kinlner, 4 Bin. 103; Creath v. Brent, 3 Dana, 129. See also 3 Phil. Ev. (C. & H. notes,) p. 861, n. 620, text, 344, and cases there cited, as applied to all the positions above taken ; 1 Greenl. Ev. § 550, and cases cited; 2 Smith, Lead. Cas. (library copy) side-page, 446 (Estoppel.)
    2. The power to appoint administrators, except in case the executors refuse to qualify, or to act, does not reside in the probate court. The appointment in this instance is a general one, and not with the will annexed, so that the legatees had no remedy on the bond given to enforce the execution of the will. It is not like a case where administration has been granted prior to the discovery of a will, for in this instance the will was a record, and had been acted on finally and conclusively by the court.
    3. The probate and record of a will is constructive notice to the world. See cases above cited, and McPherson v. Cunliff, 11 ■■Serg. & R. 422; 2 Nott &.McCord.
    
      D. Mayees, for appellees,
    made the following points.
    1. The complainant claims as legatee, but it does not appear that there was a will, for these reasons: 1st, It was not proved in the probate court by all the subscribing witnesses, who were amenable to the process of the court. See Evans v. Evans, decided at this term. 2d, It was not proved by any witness, — Henry Long.only swore “ Tliát he was a subscribing witness to the within instrument of writing, with Edward White, and Joseph Catchings, and that he saw Henry Ragland assign his name to the said within instrument, and heard him acknowledge the same to be his hand for the use and purposes therein mentioned.” This is not such proof as is required by the statute. It is not proved that the witness subscribed, or attested the same “ in the presence of the testator.” H. & H. 386.
    2. The will could not pass the estate in the slaves to the legatee, but by the assent of the executor. This is too familiar to require citation of authorities. Here the deceased was greatly indebted; the administrators, one of whom was the executor, sold the property to pay the debts, and if the sale was not regular, that can avail the legatee nothing in this case, as the slave bequeathed to him never vested by the assent of the executor. He might, I admit, go into a court of equity, if such assent was unreasonably withheld, but it is not unreasonably withheld, when the sale of the property was necessary for the payment of debts. “He who seeks equity must do equity,” and the complainant, when he seeks to recover the slaves, should tender to pay to the purchasers of these slaves the same by them paid, and applied to the payment of debts. The purchasers of the slaves, whose money paid the debts, will be substituted to the rights of the creditors.
    
      C. M. Clifton, on same side,
    filed an elaborate argument.
   Mr. Justice Clayton

delivered the opinion of the court.

The bill in this case was filed by the appellant, to recover certain land and .slaves, under the will of his grandfather. We shall make no formal abstract of the proceedings, but will advert only to such parts as in our view are necessary to elucidate the conclusion.

The demurrer of Green and wife, and of all those holding possession of the land, was properly sustained. The will, under which the complainant set up claim, was proven only by one witness. As an incipient probate, one witness might have been sufficient; but in any controversy respecting the title of the land, it must be shown that the will was established by the requisite number of witnesses. Again, the legal title alone was in controversy ; the party therefore had a full, ample and complete remedy at law, and there seems to have been no special reason for coming into equity.

A part of the defendants who were proceeded against for the slaves, also demurred. That demurrer was likewise properly sustained. The bill showed that, after the original probate of the will by a single witness, the court of probates set aside the will, and granted letters of administration on the estate. These letters were granted to the widow, and to G. M. Allen; the former of whom was appointed executrix, under the will. The estate then passed through the regular forms of administration; it was sold by virtue of an order of the orphan’s court, the assets appropriated, the administration account finally settled, and the distributive shares paid over,— that of the complainant to his guardian. This court had exclusive jurisdiction of matters, testamentary and administrative. All these proceedings were irregular and erroneous, but it by no means follows that a court of equity can apply a corrective.

If the probate of the will were originally valid, as to the personalty, and the order setting aside the probate were void, the complainant has made but one step in his progress to relief. He must show that the grant of the letters of administration was void; it is not enough to show that the court acted erroneously. The court had jurisdiction of the subject-matter, and of the persons. The fact of the existence of a will does not withdraw the estate from its cognizanc.e. If the executor will not act, it becomes its duty to appoint an administrator, with the will annexed. If a will be produced after grant of letters of administration, such letters may be revoked, but the acts of the administrator, consistent with law, are confirmed. Hutch. Code, 656. We do not see, then, that this grant of administration can be regarded as void; though there is no doubt it was erroneous, and might have been revoked. If not utterly void, no court is at liberty to disregard the acts of the administrators; they must stand, until set aside by some authorized tribunal. The court of chancery has no power to set aside their acts, or to reverse the action of the orphan’s court. The defendants derive title, either mediately or immediately, from the administrators of the estate, who sold the property under orders of the court. They have right therefore to insist, that these acts on the part of the administrators, if not valid, were at least not void, and to question the right of a court of chancery to interpose. See Sutherland v. Scott, adm'r., MS. opinion this term of court.

Under any possible view of the case, equity could not grant relief to the complainant, without requiring him to do equity. That equity would be that he must pay the debts of the testator, or at least his share of them, before he could recover his legacies. If the administrators, in good faith, under the sanction of the court, applied the assets to the payment of the debts, they are certainly in no worse condition than would be an executor deson tort. Even such an one would be entitled to a credit for all just and proper payments. Hill v. Henderson, 13 S. & M. 688. Those who purchased from these administrators, in the course of their irregular administration, are entitled to stand in their place. If their money went to pay debts of the estate, for which the property in dispute was bound, they are justly entitled to reimbursement, before the property is taken from them. This would render an account necessary, and that account would of necessity embrace the whole course of administration. Such account the court of chancery has no jurisdiction to order, according to the repeated decisions of this court. The court of probates alone has jurisdiction of suits to recover legacies and distributive shares, (Hutch. Code, 665,) where the proceeding is against the, representative. Here the claim is through the will, and must be through an administration.

The decree, dismissing the bill, is affirmed.  