
    George McCullom and Lydia McCullom vs. Grief J. Box, Administrator of Michael Box, deceased.
    Under the act of 1846, (pamphlet acts, 146,) the final settlement with the probate court of the accounts of an executor, administrator or guardian, is not conclusive until after the expiration of two years from the date of such settlement ; but may be examined into and surcharged, upon a bill of review by any person interested, filed in the probate court for that purpose, at any time within that period.
    The act of 1846, conferring on the probate courts the power to open, surcharge and falsify the accounts of any executor, administrator or guardian, at any time within two years after final settlement; upon a bill of review filed for that purpose by any person interested, is not repugnant to the constitution.
    On appeal from the probate court of Tippah county; Hon. Robert R. Thomas, judge.
    This was a bill filed in the probate court of Tippah county, to the November term, 1846, by George McCullom and Lydia McCullom his wife, to review the final settlement of the account of Grief J. Box as administrator of Michael Box, deceased, and to surcharge and falsify the same. The bilL charged that Lydia McCullom, wife of George McCullom, was one of the lawful children and heirs of Michael Box, deceased, who died intestate in the year 1841; that after his death, at the February term, 1844, of the probate court of Tippah county, letters of administration on his estate, were granted to his son Grief J. Box; that the property of the estate was appraised to nineteen hundred and twenty-two dollars, and seventy-five cents; that there was no allotment of dower in the estate to the wife of the intestate, she having died about the same time, or very soon after her husband; that at the August term, 1846, of the probate court, Grief J. Box made a final settlement of his accounts as administrator, showing a balance in his hands of only twenty-six dollars and twenty-five cents due the estate. The bill charged that the final account received and allowed by the court was false and fraudulent; it charged the estate with large sums which were paid in the discharge of the debts due by the administrator individually, and not properly chargeable to the estate; that there was a negro boy appraised at $200, in the inventory, which had not been accounted for by the administrator; that from the inventory and vouchers presented to the court, it appeared that Michael -Box at the time of his death, did not owe exceeding thirty-five dollars; that the estate was appraised to nearly two thousand dollars, and a very small portion of it had been accounted for by the administrator. The bill prayed that the decree of final settlement be reviewed and reversed, and the account of final settlement be surcharged and falsified. The administrator demurred to this bill, and assigned the following causes of demurrer.
    “ 1st. Said bill shows no error of law appearing in the body of the decree sought to be reviewed by said bill.
    “ 2d. Said bill shows no new and material matter discovered since said decree has been enrolled.
    “3d. Said bill shows no reason why the objections made therein to the final account of said defendant, as administrator of said Michael Box, deceased, were not made or set up in the probate court, within the time required by law.”
    The court sustained the demurrer, and ordered the bill to be dismissed; from- which the complainants prayed an appeal to this court.
    
      Price, for appellants.
    This is a bill for review filed under the later clause of the third section of the act of 1846, regulating the practice of the probate court. Pamphlet Acts, 1846, p. 146. To this bill there is a demurrer admitting all the facts stated in the bill; and the only question for the determination of this court is, does a bill of review lie to correct a final decree of the probate court; to correct errors apparent upon the record as well as errors in the decree itself.
    
      The act is so explicit-that it needs no comment; “ any person interested, may at any time in two years after final settlement by bill of review, open the account of any executor, administrator or guardian, and surcharge and falsify the same.”
    The record shows amply that there has been a maladministration of the estate, and that the final account should be falsified. It is believed that none of the authorities cited by appel-lees are in point, as the statute has enlarged and given a new remedy by bill of review. Chellon on Probates, p. 13,
    
      O. Davis, for appellee.
    This was an attempt to maintain a bill of review in the probate court, under the act of 1846, c. 12, p. 146, sec. 3.
    The statute provides, that probate courts may entertain bills of review, “in the same manner and according to the same rules, as the same are entertained by courts of equity.”
    The only question is, does the bill in this case upon its face, present sucha case as would entitle the complainant to a review according to the rule given in the statute ?
    The rule given by Story, Eq. PL, sec. 404, is, “ No bill of review shall be admitted, except it contain either error in law, appearing in the body of the decree, without further examination of matters of fact, or some new matter which hath arisen in time after the decree, and not any new proof, which might have been used, when the decree was made.”
    The rule given by this court is in' substance the same as given by Story. “A bill of review can only be granted after an en-rolment of the decree, for error apparent upon the face of the decree, or upon some new matter, as a release, receipt, &c. proved to have been discovered since.” Iler v. Roath, 3 How. R. 292, “ It is a settled rule, that admits of no qualification, that a bill of review can only be entertained on one of two grounds. 1. For errors of law appearing in the body of the decree. 2. For new and material matter discovered after the decree is enrolled.” Stark v. Mercer, 3 How. R. 380.
    •Has the complainant brought his case within these rules 1 It is clear that he has not.
    
      It is not pretended that there is any newly discovered testimony. Every fact stated by the complainant, was known to him, and as susceptible of proof by him, before the decree as since.
    No error of law is shown in the decree, or relied upon by the bill. It is only insisted in the bill that the court gave the wrong decree upon the facts of the case. This, according to the rules above laid down, could not be remedied by bill of review. A writ of error would be the only remedy.
   Mr. Justice Clayton,

delivered the opinion of the court.

This bill was filed in the probate court of Tippah county to review the final settlement of the administration account of the appellee, made at the August term, 1846, and to surcharge and falsify the same.

Several errors in the settlement are pointed out. There was a demurrer filed to the bill, which was sustained in the court below, and the bill dismissed.

The case involves the construction of the third section of the act of 1846, passed to amend the several laws in relation to the courts of probate. The words are any person interested, may, at any time within two years after final settlement, by bill of review, open the account of any executor, administrator or guardian, and surcharge and falsify the same.” Pamphlet Acts, p. 146. It is insisted by the counsel of the appellee, that the bill of review was intended bjr the legislature to have no other or greater effect, than such a bill under the established practice of the chancery court. This construction is too narrow. The act not only gives the right to file a bill of review, but to surcharge and falsify the final settlement. The effect of this is to make the settlement only prima facie evidence for the space of two years. Before, by the decisions of this court, final settlements were held to be conclusive, and beyond attack, except for fraud in making them. Now they are upon the same footing with partial or annual settlements, and may be examined into during the period limited by the statute.

The remark by the court in Harris v. Fisher, 5 S. & M. 79, “ that the doctrine applicable to bills of review, is incompatible with the legitimate powers of the probate court,” was made before the passage of this law. Such a proceeding in the English law was peculiar to a court of chancery. But in this state a court of equity cannot review, or remodel an account settled in the probate court. It is important that such a power should be found somewhere in our system. The legislature after an experience of the bad consequences proceeding from the want of it, has thought proper to confer it on the probate court. Confined as it must of necessity be, to the examination of matters within the exclusive jurisdiction of that court, we cannot say that the power is repugnant to the constitution.

The decree is reversed, and the cause remanded for further proceedings.  