
    Tilman Hemphill, guardian of Martha, Eliza, and William Owens vs. William Fortner, administrator of Tobias Owens, deceased.
    Where a commission of insolvency was duly closed, and the commissioner discharged at the November term, 1845, of the probate court; and at the March term, 1845, a petition was filed by one alleging himself to be a creditor, and praying that the commission might be re-opened, to let in his claim for the reason, that in July, 1845, he had laid before one of the commissioners his account duly certified, and in their report to the probate court, they had returned no claims against the estate; it was held, that the petition showed no available grounds for re-opening the commission; the objection to the report, if any, should have been taken by way of exception to the report at the term to which it was reported.
    Where commissioners of insolvency reported, that no claims had been presented against the estate; it was held to be no objection to the report, that it was not accompanied, as the statute requires, with “ the list of claims presented, &c.”
    Nor is it any objection to the report of commissioners of insolvency, that the probate court, upon allowing the report, omitted to make the order of distribution ; the omission could, at any time afterwards, be supplied ; and was a matter which alone concerned creditors who had presented their claims, and distributees.
    On appeal from the probate court of Hinds county; Hon. Amos R. Johnston, judge.
    Tilman Hemphill alleges in his petition, filed to the March term, 1846, of the probate court, that he is the guardian of Martha, Eliza, and William Owens, children of James M. Owens, deceased; that Tobias Owens, when he died, was their guardian, and died in their debt in the sum of $2751-64, as appeared by the final settlement of his guardianship, made by William Fortner, the administrator of Tobias Owens, on the 25th of March, 1844, in the probate court of Warren county; that at the February term, 1845^of the probate court of Hinds county, Tobias Owens’s estate was declared insolvent, and P. M. Alston and A. L. Dabney appointed commissioners of insol-, vency, who were ordered to meet once a month for six months; that having provided himself with the evidences of the indebtedness of Tobias Owens, taken from the records of the probate court of Warren county on the 21st of July, 1845, he made affidavit to the correctness of the account before Alston, who was a justice of the peace as well as one of the commissioners; and that, as the account had also to be probated, Alston handed it back to petitioner, who immediately filed it with the clerk of the probate court of Hinds, to be laid before the court when in session. Having done this, he supposed that he had done all which he was required to do; if the law required him to do more, he was ignorant of it. He supposed the account would be allowed as a matter of course; but to his astonishment, he had heard that this was not the case; that the commissioners had reported to the November term, 1845, that no claims had been presented; but that they had ascertained the amount of privileged claims to be $85-38; that the commissioners were then discharged. At the January term, 1846, in obedience to a citation from the court, Fortner had reported that he held $600 as adminstrator of Tobias Owens, which would go to the dis-tributees of Owens, unless the court would re-open the commission, &c.
    Fortner, the administrator, was duly cited to answer the petition; the citation was executed on the 11th of April, 1846 ; and at the May term, 1846, the petitioner read the report of the commissioners of insolvency, made at the November term, 1845, as follows, viz.: “ Respectfully report, that they caused the usual notice to be inserted in the Raymond Gazette for sfk months, immediately succeeding the 7th of March, 1845, and agreeably to the terms of the notice, they met on the third Monday of each month, during that time, at the office of P. M. Alston, at Raymond; no claim has been presented to us against said estate, and no report of assets has been made by the administrator. We, therefore, report only the expenses of administration which we have ascertained as privileged claims, viz., (the report here states the privileged claims, amounting in the aggregate to $85-38,) which is respectfully submitted. November 25, 1845.
    A. L. Dabney, 7 Comm>rs. P. M. Alston, )
    “ Sworn to in open court, November 25th, 1845. Jos. W. StewaRT, clerk.”
    A copy of the notice given in the newspaper, was appended to the report. The court thereupon made this decree : “ In the matter of the estate of Tobias Owens, deceased, the commissioners appointed by this court, at the last February term thereof, to receive and examine the claims of the several creditors of the estate of Tobias Owens, deceased, having at this term rendered-in and filed their report, and it appearing to the satisfaction of the court, upon reading the proofs and exhibits, that said commissioners have in all things proceeded in the performance of their duties, in conformity to the statute and the directions of this court. It is therefore ordered, that the said report, and all things therein contained, be, and the same is hereby approved, confirmed, and ordered to be recorded.” The court, at the same term, ordered a citation for Fortner, to exhibit his account of assets at the next term, in order to make distribution.
    Upon argument, the probate court dismissed the petition for insufficiency, and Hemphill appealed.
    
      John Shelton, for appellant,
    contended,
    1. That the probate court should not have dismissed the petition when it was not contested, unless imperatively required.
    2. That this case was distinguishable from Chewning v. Peek and wife, 6 How. (Miss.) 524; Smith v. Berry, 1 S. & M. 321; Addison v. Eldridge, 1 S. & M. 510; Herring v. Wellons, 5 S. & M, 354, in these respects. 1st. The commissioners report in this case was void in reporting that no claims had been presented ; it was, in truth, no report such as the statute (H. & H. 409,) requires, to wit, “ a list of all the claims that shall have been laid before them, with the sums they shall allow on each respective claim to the probate court.” The commissioners, when no claims are presented, should have so reported, and asked for further time. A report that there were no claims prosecuted, is not a report of insolvency; nor of claims presented and sums allowed. The report was thus void for want of an essential element, to wit, claims to be reported, and should not have been received; and being void, its reception does not make it valid.
    2d. The probate court wholly omitted to order distribution on the report of the commissioners; the decree on the reception of the report, therefore, was not final and conclusive, and not, therefore, a bar to the re-opening of the commission. No order of distribution had been made when the petition was filed; the subject was therefore still under the control of the probate court, and the petition should have been allowed.
    3. The commissioners’ report, in this case, was not true in fact. The claim was duly presented to the commissioners, and they ought so to have reported.
    4. The subject was not res adjudícala; there are no creditors whose rights are to be affected by opening the commission ; and if it be not opened, this case will present the singular fact of an insolvent estate not having a debt exhibited against it and divided among the distributees.
   Mr. Justice Thacher

delivered the opinion of the court.

A commission of insolvency was directed in the probate court against the estate of Tobias Owens, deceased. This commission was closed, and the commissioners discharged at the November term, 1845. At the March term, 1846, the appellant filed his petition in the Hinds county probate court, charging that the estate of Tobias Owens stood indebted to his wards in a considerable sum; that he had presented an account thereof, duly certified, to one of the commissioners, upon the insolvency of said estate, in July, 1845, but that said commissioners, in their report, returned no claims against said estate; and the petition prayed, that the commission might be re-opened for the purpose of letting in said claim.

It has been several times held by this court, that a commission of insolvency cannot be re-opened at a term subsequent to that at which the commissioners have made their final report, for any cause, unless the former orders of the court were absolutely null and void. 6 How. 524; 1 S. & M. 321; 5 Ib. 354; 10 Ib. 599.

It is not set up in the petition, that the previous orders of the court relating to the commission, were null and void; but it is relied upon, that the report was untrue in not returning the claim of the appellant. This objection, properly, should have been made by an exception to the report, at the term of its allowance for approval; and it is very questionable, in view of the manner in which this claim was presented to but one of the commissioners, and then withdrawn from him, whether the exception could then have prevailed.

The objections taken by brief in this court, to the proceedings of the report, are purely technical, and not fatal. The report declares that no claims were presented against the estate, and consequently it was impossible to present “ a list of all the claims that shall have been laid before the commissioners.” The omission of the court to make the order of distribution upon allowing the report, is no objection to the correctness of the report. This omission can be supplied at any time, and is, besides, a matter concerning creditors who have presented their claims and distributees.

The case presents an instance of neglect, growing confessedly out of ignorance of the law, but there is no relief for the appellant.

Decree affirmed, dismissing the petition.  