
    James H. McCoy vs. Zachariah Rhodes et al.
    The probate court has no jurisdiction of a bill filed by the assignee of an open account against the assignor and the administrator of the administratrix of the debtor in the open account, to compel the administrator to pay the account to the assignee, on the ground_that the administratrix in her lifetime had promised the payment of it to the assignee, provided the account should be allowed to her in the settlement of her intestate’s estate, and that it had been so allowed ; but the administratrix had not paid it; and the assignor claimed it as being due to him.
    On appeal, from the probate court of Adams county, Hon. Charles L. Dubuisson, judge.
    The appellant, James H. McCoy, filed his bill in the probate court, alleging, in substance, that in the year 1836 the defendant, Zachariah Rhodes, being indebted to him in about the sum of three thousand dollars, paid by him to Charles Lacoste, as the security of Rhodes, and Rhodes having an open account due him from the estate of Joseph Montgomery, deceased, in the parish of Concordia La., in the hands of Mary Montgomery, the widow and curatrix of said Joseph, amounting to the sum of $392^, gave the account to him in part payment of the debt due to him; that he presented it to Mary Montgomery for payment, informing her at the time, that it belonged to him, of which she was also informed by Rhodes, upon which she acknowledged the correctness of the account, but claimed compensation or payment to the amount of $144, and agreed if that sum should be deducted and that account be allowed her upon settlement of the succession of said estate, she would pay it to him. Afterwards, upon consulting with Rhodes, (who first resisted the credit,) it was finally agreed that it should be allowed, which was made known to her, and she thereupon, in a settlement of the succession of said estate, was allowed the account on the 1st day of October, 1838. By reason of this allowance, she became indebted and bound to McCoy, in the said sum of $3411¶0, which she thereupon assumed and promised to pay to him for the consideration aforesaid; that she afterwards died in the county of Adams, Mississippi, (where she resided at the time) without ever having paid the same to him or Rhodes. That administration of her estate was granted to Eli Montgomery, residing in Adams county, who was fully apprized of McCoy’s claim, and who in like manner knew from Rhodes that he had given to McCoy said account against the estate of Joseph Montgomery, to be collected for his use, and who was willing to pay it to him as a just demand against the estate of said Mary, but was prevented from doing so by the unjust and fraudulent interference of Rhodes, who was striving to collect it for his own use, with the intent to cheat and defraud McCoy. That Eli Montgomery is unwilling to pay the same to him without the sanction and decree of the court upon a hearing of the parties in interest. The bill makes said Rhodes, and Eli Montgomery administrator of said Mary, defendants, and prays, &c., and upon final hearing that the account be decreed a charge against the estate of said Mary, and that her administrator, Eli Montgomery, be decreed to pay it to McCoy out of the assets of the estate in his hands unadministered.
    Eli Montgomery, as administrator of said Mary, filed his account, which stated, in substance, that Joseph Montgomery, of the parish of Concordia, died in 1834; that Mary, his widow, was appointed curatrix, and John F. Montgomery curator of the succession of said estate ; that he was requested by said Mary and John to collect all of the claims against said estate, as they were principally in the city of Natchez; that some time in the year 1836, McCoy handed to him an account of Rhodes against the estate of Joseph Montgomery, amounting to three hundred and ninety-two dollars and eighty-seven cents; he handed said account to the curatrix the first opportunity he had, who objected to said account, and stated there should be a credit of $144 for twelve months’ board of Rhodes; he informed McCoy of this fact, and he refused to allow the credit of $144; he also informed Rhodes thereof; he also stated he would not allow said credit. The account remained in that situation for twelve months or more before either would allow the credit; they both finally agreed to allow said credit, but at what time he cannot say; of this fact he informed the curatrix as soon as he could, the account still remaining in the hands of the curatrix and curator. It had no order on it, but he understood, about the time the account was handed in, the amount of it, when paid, was to go to McCoy. At the time said curatrix and curator made a settlement of the succession of Joseph Montgomery, they admitted and agreed to settle with Rhodes for said account, allowing him $285 87, and $56, making in all $341 87, which was in the fall of 1838; when they made their settlement Rhodes claimed the amount of his account after deducting $144. As no order had been given on said account by Rhodes to McCoy, it was taken for granted that it belonged to Rhodes, and the settlement made accordingly with Rhodes, and the amount of the account up to that time was assumed by Mary Montgomery to Rhodes in her individual capacity. She did not pay said amount to Rhodes in her life-time, and it is still due from her estate to Rhodes. After the death of Mary, she having removed to Mississippi, he administered on her estate. McCoy claims the amount of said account as belonging to him. In the present situation of the business he cannot or does not feel authorized to pay it to either McCoy or Rhodes.
    It being made to appear to the court that Rhodes was a citizen of Louisiana, and that process could not be served upon him, an order of publication was made, when afterwards, at the September term, 1843, Rhodes, together with Montgomery, appeared by attorney, and filed a demurrer to the bill, which demurrer was sustained by the court, the bill dismissed, and a decree for costs rendered, from which decree this appeal is prosecuted.
    The appellant assigns for error first, in sustaining defendant’s demurrer; second, in dismissing bill absolutely, and decreeing costs against complainant; third, in dismissing citation against Rhodes, and permitting Montgomery to demur after account filed.
    
      
      Sanders and Price, for appellants.
    The constitution of the state confers upon the court of probates “jurisdiction in all matters testamentary and of administration,” &c. The demand here is one of administration, where the representative of the intestate wants the advice of the court to whom to pay an acknowledged demand. The proof, that is the allegations of the bill, admitted upon demurrer and sustained by the account of Montgomery, shows that Rhodes gave the account he had against the estate of Joseph Montgomery to appellant McCoy in part pay of money which McCoy had paid for him as his security ; that he finally presented the account to the curatrix in Louisiana, who promised to pay it to him if allowed a certain credit ($144,) provided it was allowed to her in the settlement of the estate of Joseph Montgomery. It was allowed to her, not as a debt due to Rhodes, but an account as paid by her out of the estate. It is true that it is in the name of Rhodes, but he had passed it by delivery, and informed the agent and the curatrix that the money was to go to McCoy. Before payment she removed to Mississippi and died. McCoy has no recourse against the estate of Joseph Montgomery ; she received the benefit of the account as his, and the administrator refuses to pay, but advises him to appeal to the court. He does so properly, as it has general and exclusive jurisdiction in the matter, particularly as he is compelled to resort to a discovery both against the said Rhodes and the said administrator. ,
    The powers of the probate court, so far as its jurisdiction extends, are as ample as those of a court of chancery. Blanton v. King, 2 How. 856. if so, a court of equity would, from the circumstances, force the discovery and direct the account to be probated against the administrator, and having taken jurisdiction for that purpose, will extend it, and direct its payment and enforce it, if necessary, either by attachment or execution.
    The bill may not be as technical nor apt as might have been desired but with the minute allegations of fact; with a general prayer for relief, the court would decree that McCoy be subroga-ted to the rights of Rhodes, if the facts of the case do not sufficiently establish his legal right to the demand; and ordered it to be probated as an allowed claim against the estate. Here is no effort to compel the administrator to account; the whole object is to have the claim probated, with such decree or order therewith as may be equitable.
    Hewett, for appellees.
   Mr. Justice ThacheR

delivered the opinion of the court.

McCoy filed his bill in the probate court of Adams county, setting out that Rhodes, in 1836, was indebted to him in a large sum, and that, in part payment of this debt, Rhodes gave McCoy an open account which he claimed against the estate of one Joseph Montgomery, deceased, of Louisiana, which estate was then represented by Mary Montgomery, also since deceased. The bill further alleges that the said Mary agreed, with certain deductions, to pay the account to McCoy, provided the account was allowed to her in the settlement of said Joseph’s estate, which allowance is also alleged to have been suffered. The bill further alleges that the said Mary subsequently died in this state without having paid the account, and that Eli Montgomery, also a defendant in the bill, was appointed administrator of her estate. The bill charges that Rhodes still claims the amount of the account from said Mary’s estate, but prays for a decree for the amount in plaintiff’s favor. Eli Montgomery filed-an answer to the bill, in which he admits that there was an understanding at a certain time that the sum agreed upon as constituting the account was to be paid to McCoy upon the settlement of Joseph Montgomery’s estate, but that upon the settlement taking place, Rhodes claimed the amount of the account for himself, and as upon the account there was no order to pay the amount to McCoy, or any other transfer of the account, Mary Montgomery, in pursuance of her part of the contract, assumed the amount of the account as her individual debt to Rhodes, which still remains unpaid. Subsequently, there appears in the record a general demurrer in behalf of defendants Eli Montgomery and Rhodes. Tlie court decreed that the demurrer should be allowed and the bill dismissed.

The case shows a state of circumstances over which the probate court had not control, and either under the demurrer or the answer, it was bound to decree upon a general principle of want of jurisdiction.

Judgment affirmed.  