
    JANUARY TERM, 1844.
    Ann B. Green v. Andrew J. Green, et al.
    A petition filed in the Probate Court by an executrix, against the legatees of her testator (one of whom was dead, and his share by the terms of the will passed to the survivors), and seeking to bring into contestation the estate of the original testator and that of the deceased legatee, being matters entirely distinct, and at the same time calling the other legatees to an account for their personal indebtedness to the executrix, and praying to have the testator’s estate sold to discharge that indebtedness ; held, to be multifarious.
    The Probate Court has no jurisdiction to enforce from legatees, at the petition of the executrix, a personal demand in her favor against them.
    A petition in the Probate Court embracing some objects over which that court has no jurisdiction, and in its form in other respects, in joining incongruous interests and subjects, being defective, cannot be maintained.
    On appeal from the decision of the Probate Court of Claiborne county.
    The appellant, Ann B. Green, filed her petition in the Probate Court of Claiborne county, setting forth, in substance, as follows :
    Abram Green died in the county of Claiborne in the spring of 1826, possessed of a large estate, consisting of twenty-five negroes, a plantation, with all the necessary implements of husbandry thereon, together with stock, &c., having a crop of cotton unsold, and provisions laid in for raising another. He left the following children, to wit: Thomas J., Andrew J., Abram A., and Martha, by his first wife. His widow, Mrs. Ann B. Green, the appellant, whom he had married about a year or eighteen months previous to his death, was pregnant at the time of his death: the child subsequently born was called Margaret.
    On the 13th of March, 1826, Abram Green made his will, and disposed of his said property as follows, to wit:
    1st. To John D. Green he gave three negroes, — John, Amy, and Frank.
    2d. To Andrew J. Green, five negroes, — Tarlton, Eveline, and Peter (the child of Tarlton and Eveline), Flora, and Peter (the father of Eveline).
    
      3d. To Abram A. Green, four negroes, — Putland, Sina, March, and Minda.
    4th. To Martha Green, four negroes, — Hanna, Maria, Albert, and Anderson.
    5th. To the “ infant his wife was then pregnant with ” (Margaret), four negroes,— Lucy, Charles, Malinda, and Washington.
    6th. To his wife, Ann B. Green, four negroes, — George, Mina, Leander, and Louis ; his gig and riding horse, together with his right and claim to any property his wife had when he married her.
    7th. That Thomas J. Green had been already provided for, and that he wished him to have a good title to all the property he had previously given him.
    8th. “ It is my will and intention that all my real and personal property of every description shall be kept together until my just debts are paid. But if my executors should find it necessary to sell any part of my estate, or deem it to the advantage thereof generally, then my wish is, that my real property, or such part thereof as they shall think proper, should be sold in preference to selling any part of my personal property.”
    9th. “ I give and bequeath unto my wife, A. B. Green, all my real property and stock thereon of every description, together with the appurtenances, during her natural life. But if my executors should consider that the interest of my estate calls for a sale, then they have full power to do so ; that in that event, I expressly request and charge them to provide a comfortable place of residence for my said wife ; and after her death and the payment of my just debts, the whole to be divided between my children (with the exception of Jefferson, who is already provided for), if it can be done to advantage ; if not, then the whole to be sold, and the proceeds to be equally divided among them as aforesaid.”
    10th. “ In the event of any of my children particularly provided for in this will, losing any part of the personal property devised to them (by death or otherwise, before they come to the possession of said share), then the said share shall be made up to them in the division of my real estate when divided, or if sold, in money, agreeably to the relative value of said slaves as they now stand.”
    11th. It is my will, that in the event of the death of any of my children herein particularly provided for, that his or • their share shall be equally divided among the survivors, provided they have not received the share bequeathed to them, and provided said child shall die before he or she arrives at the age of twenty-one ; and if he or she die before twenty-one, but after their marriage, then, provided also he or she shall die without issue ;
    12th. He directs that when any of his children aforesaid come of age, they are to have bed and furniture.
    13th. He directs that the children of his wife by her second marriage, should be supported and educated in all respects as his own (her marriage with the testator was her third marriage). He also directs, that his sons John D. Green, Andrew J. Green, and Abram A. Green, should receive the best education that circumstances would permit so as not to sell or incumber their shares of the property left them. He leaves John and Andrew in charge and under the direction of his executors, and Abram he leaves in charge and under the control of his wife, in all respects, both as to person and property.
    14th. u Whereas, my niece, Martha Carpenter, has kindly taken into her charge my daughter, Martha Green, it is my wish that she should still continue to her that motherly care and attention after my death, that she has heretofore done; and after the payment of my' just debts, it is my wish that Horace Carpenter should' take into his charge, and manage to the best advantage, the share of my estate that I have left to my said daughter, until she comes of age or marries, then to be given up to her or her husband.”
    15th. He directs his crop of cotton then on hand to be sold, and the proceeds applied to the payment of the debts due Offutt & Croaly, and Horace Carpenter, and the stock of provisions then on hand should not be taken into account in the inventory, but applied to the support of the plantation.
    16th. He appointed his wife executrix, Benjamin Hughs, Cornelius Harring, and Thomas Gale his executors, and directed that no security of any kind should be exacted in administering on the estate.
    The petition of the appellant further stated :
    1st. That the said Green died after the making and publishing of said will, and that the same was regularly proved and admitted to record.
    2d. That B. Hughs, Cornelius Harring, Thomas Gale, and herself, qualified as executors and executrix of said will.
    3d. That the executors deemed that the interest of said estate required a sale of the lands, and a portion of the negroes, specifically bequeathed, and that, in 1828, they did sell all the real estate of said Green, deceased, and all the stock thereon, which had been devised to the said Ann B. Green during her natural life ; that the sale was necessary for the payment of debts.
    4th. That the executors also sold several of the negroes specifically devised, for the same purpose, to wit: Tarlton, devised to A. J. Green ; John, devised to John D. Green ; Sina and March, devised to Abram A. Green ; Hanna, Maria, and Anderson, devised to Martha Green ; Lucy and Washington, devised to Margaret Green (born after the death of the testator) ; and Leander, devised to Ann B. Green.
    5th. That about the 8th of April, 1828, after the sale of the plantation, the petitioner moved from the same, and since that time has never been provided with a “ comfortable home,” or place of residence as directed by the will, but that she had provided herself with the same at her own cost and expense.
    6th. That the child mentioned in the fifth article of said will was born about the 1st day of August, 1826, and was called Margaret, and died on the 29th day of August, 1835 ; that she had been supported and maintained by the petitioner out of her individual means.
    7th. That all the negroes, which had not been sold, had been divided, and delivered over to the respective legatees (which division had been concurred in), except Charles and Malinda, devised to Margaret Green, which negroes were in possession of the petitioner.
    8th. That the children of her second marriage were not supported and educated out of the estate of A. Green, deceased, as directed by the will, but that she had supported them herself, with their assistance/
    9th, That the petitioner, from the death of said testator, or from 1828 to 1834, supported, maintained, and educated Martha Green (now Martha Ballard), during which time the said Martha went to school, from April, 1828, to December, 1832 ; that the petitioner has never received any compensation, and claims $300 per annum.
    10th. That, at the request of the executors, she furnished A. J. Green with board and lodging for two years, and charges $180 per annum for that.
    11th. That she furnished, in like manner, John D. Green, now deceased, with board and lodging for two years, and charges $180 per year for that.
    12th. That, at the death of A. Green, deceased, he owed a note at the bank at Port Gibson for $1550.50, which the petitioner paid by substituting her own note, and never has been reimbursed, as she alleges, only in the sum of $915, and claims the balance, with interest from the 7th of September, 1832.
    13th. That, in addition to the foregoing, she laid out divers sums of money, for divers purposes, on account and in support of the legatees, for physicians’ bills, clothing, &c. She files an account with her petition, showing a balance due her, from the estate and legatees, of over $4000.
    14th. That she had the benefit of the hire of several of the negroes from 1828 up to 1835, or until they were delivered over to the legatees.
    15th. That the petitioner, since the year 1835, has only had in her possession the negroes Charles and Malinda, which were bequeathed to Margaret Green. She has occasionally hired them out, and received compensation therefor, and is willing to account for the reasonable hire of the same.
    16th. That the executors of said estate have never made any final settlement thereof, nor has there ever been any among the legatees of said will; and that said executors have never made any provision for the petitioner, as directed in said will. John D. Green died in 1835, without issue. That A. J. Green, Levin W. Ballard and wife (Martha), and Abram A. Green and the petitioner, were the only persons interested in the settlement of said estate, and the disposition of the two negroes willed to Margaret. The petitioner prays that the legatees now living, and said Benjamin Hughs as executor, may be made defendants; prays that an account may be taken as between all parties, and that provision may be made for her, as directed by the will.
    To this petition, the heirs of A. Green, deceased, filed a demurrer, which was sustained by the Court, and the petition dismissed.
    The petitioner asked leave to amend, which was refused by the Court; from which judgment the case was brought up by appeal.
    The following errors are now assigned in this Court:
    1. In sustaining the demurrer to the petition.
    2. For not allowing the amendment.
    3. In not granting the relief prayed for in the petition.
    
      Thrasher and Sillers, for appellant.
    This case comes up on an appeal from the decree of the Probate Court, dismissing the petition of Ann B. Green, filed as the widow and executrix of Abram Green, deceased, praying for an order of sale, to sell property for the payment of debts, which property had been specifically devised ; for an abatement of legacies, in favor of herself and creditors ; for a final settlement of the estate upon equitable principles, taking into consideration the legacies abated in favor of creditors, and to equalize the same.
    There was a general demurrer filed by the legatees to the petition of the executrix, which was sustained by the Court, and the petition dismissed, upon the ground that the property in controversy was a legacy, devised to Margaret Green, daughter of the testator, who died under age, an infant, and intestate, and that the same now constituted no part of the testator’s estate ; but that the same descended to the brothers and sisters of the said Margaret by inheritance, discharged from the provisions and operation of the will of Abram Green, deceased.
    Three errors have been assigned to reverse the decree of the Probate Court, all of which can with propriety be considered under the third, to,wit: “that the said Court erred in not granting the relief prayed for in the petition, by virtually deciding that the other devisees took the legacy of Margaret Green, deceased, by descent from the said Margaret, and that therefore it was not liable, as the other legacies were, to abatement or sale for the payment of debts.” If the petition showed sufficient grounds for equitable relief, and the Court had jurisdiction of the subject-matter, then there can be no question but that the Court erred in refusing to entertain the petition, either as it was originally filed, or as it might be amended. We think that there can be no doubt of either proposition. In the case of Blanton v. King, 2 Howard’s Rep. 861, the Court say, that “the powers of a Court of Probate are in every respect as ample, so far as its jurisdiction extends, as those of a Court of Chancery ; ” and, in the case of Carmichael v. Broioder, that “the powers of the Probate Court are coextensive with those of a Court of Equity; for, if necessary, parties may proceed by bill and answer, and the Court may decree as the justice of the case may require.” 3 Howard’s Rep. 258. These decisions establish the jurisdiction of the Court over the subject-matter beyond doubt; and that the petition presented grounds for equitable relief, we think equally clear and conclusive.
    The petition shows that the estate of Abram Green, deceased, is largely indebted to Ann B. Green, the widow and executrix, for cash advanced in paying the debts of the deceased, and for money expended in raising and educating the legatees, to wit, the children of the testator. The petition also shows that a large portion of the specific legacies have been sold for the payment of debts, and especially all the property contained in the ninth devise to the widow and complainant, Ann B. Green, which produced an entire destruction of the thirteenth devise to the children of complainant by a former husband. The petition further shows, that all the legacies contained in the will have been either sold for the payment of debts, or that they have been delivered over to the legatees, except two negro slaves contained in the fifth devise to Margaret Green, who died under age, an infant, and intestate; consequently, that the two negro slaves devised to Margaret Green did constitute the only portion of the estate of Abram Green, deceased, undisposed of, out of which the remaining debts are to be paid, and the ninth and thirteenth devises made good, or equal in proportion to the other legacies; wherefore, it is hard to perceive upon what ground the Probate Court refused her aid, in equalizing the legacies, and in disposing of the remaining property of Abram Green, deceased, for the payment of equitable and legal debts, and the final settlement of the estate, the ninth and thirteenth devises being equitable debts, chargeable on the estate of the testator.
    The two remaining slaves devised to Margaret Green, deceased, do unquestionably constitute a portion of the estate of Abram Green, deceased, for the payment of debts ; and until the assent of the executrix, the devise does not vest in the legatee. The bequest of a legacy, whether it be general or specific, transfers only an inchoate property to the legatee. To render it complete, the assent of the executor is requisite. 3 Bac. Ab. 84 ; 2 Bl. Com. 512; 1 Harris & Johnson, 139.
    On the executor all the testator’s personal property is devolved, to be applied, in the first place, to the payment of debts. Toller’s Law of Executors, 306. Hence the necessity of the assent of the executrix Ann B. Green to the legacy of Margaret Green, deceased, before the brothers and sisters of the said Margaret can take it by inheritance ; whether it goes to Margaret, or to the other devisees, it is subject to be sold for the payment of debts, and until the assent of the executrix Ann B. Green, it is a part and parcel of the testator’s estate : whence the liability of the two remaining slaves devised to Margaret Green, deceased, for the payment of both legal and equitable debts, and to make good in toto, or in part, such legacies as have been disposed of for the payment of debts.
    Courts of equity regard all debts in conscience as equal, jure nat-urctli, and equally entitled to be paid ; following the maxim, that “ equality is equity.” JEquitas est quasi cequalitas. Willes’s Rep. 521 ; 2 P. Will. 412, 416 ; 3 P. Will. 343, 344. It frequently happens that lands and other property, not strictly legal assets, are charged not only with the payment of debts, but also with the payment of legacies. In such case, all the legatees take pari passu, and if the equitable assets (after payment of debts) are not sufficient to pay all the legacies, the legatees are all required to abate in proportion. 1 Story’s Equity, 523, 524 ; Toller’s Law of Executors, 338.
    
      To this rule, however, there is an exception in favor of a wife. If the legacy be a provision for the testator’s wife, then it does not abate with the other legacies. Toller’s Law of Executors, 339 ; 2 Ves. 417; and 1 Desaus. Rep. 500. “ Legacies to a wife partly specific, and partly general, are exempt from contributing to the payment of debts, because given in lieu of dowér, and so accepted. The debts are to be paid out of the residuary personal estate. If that be insufficient, then out of the estate devised to the other heirs. 1 Desaus. Rep. 500. Again, real estate devised is not liable to contribute to the payment of legacies on a deficiency of personal estate, unless specially charged. 7 Greenl. Rep. 237.
    Therefore, in every point of view, the entire estate of Abram Green, deceased, whether specifically devised, or remaining in so-lido, is liable to the 9th and 13th devises, made in lieu of dower to Ann B. Green, the wife of the testator, and for the payment of debts. The two remaining slaves devised to Margaret Green, deceased, constitute the only property subject to said charges and debts ; and, for that reason, ought to have been decreed liable.
    
      H. Short, for appellees.
    The appellant filed her petition in the Probate Court, Claiborne county, for the purpose of having a u comfortable place of residence ” provided for her ; which she claimed to have by the provisions of the will of A. Green, deceased, in the event of the sale of the real estate, which was left to her during her “ natural life.”
    At the time of the filing of the petition, it appears that the petitioner and Benjamin Hughs were still ^acting as executors; for it is alleged, that no final settlement had yet been made, though Abram Green died in 1826.
    The specific legacies, which had survived a protracted and rapacious administration, were delivered over to the legatees in 1835 ; in this year, Margaret Green, the child born after the death of the testator, died, leaving two negroes, which had been specifically bequeathed to her, to wit, Charles and Malinda; which, by the terms of the will, went to the survivors of the “ children particularly provided for by*the will,” by executory devise.
    The object of the petition was to have such a disposition made of those two negroes (which the appellant alleged were in her possession) , as would defeat the title of the heirs of A. Green, deceased, who were entitled thereto by the death of the said Margaret Green; and to have them, and what money the appellant could get out of the heirs by the powers of the Probate Court, for money advanced by her on account of the estate, and for moneys expended, as she alleges, on account'of the heirs, for board, clothing, schooling, physicians’ bills, &c., converted into a fund, to provide herself with a place of residence, which she thinks herself entitled to, from the fact that the real estate which was left to her for life was sold to pay the debts, although that was the fund pointed out by the testator out of which the debts were to be paid.
    Benj. Hughs, one of the executors, and the heirs of Abram Green, or such of them as are interested in the two negroes, left by Margaret Green, are made defendants to the petition. They (the heirs) filed their demurrer to the petition, which was sustained by the Court, and the petitioner dismissed. The petitioner then asked leave to amend, which was refused by the Court: from which judgment the case was brought up by appeal.
    Three grounds of error have been assigned by the appellant, but it is deemed unnecessary to notice them in detail; and passing over the defects of the petition, as to matters of form, with respect to the parties, two points will be submitted to the Court, on the part of the heirs of Abram Green who are parties thereto.
    1st. The Probate Court has no jurisdiction in the case presented by the petition ; the pow7er to carry out and enforce the trust created by the will of Abram Green, in case a sale of the real estate should be determined on by the executors, is exclusively vested in the Superior Court of Chancery.
    2d. That if the Probate Court had jurisdiction, still the judgment was correct, from the fact that the petition pointed out no fund out of which a “ comfortable place of residence ” could be provided for the widow, had an account been ordered. And there being no equity on the face of the petition, the Court was correct in refusing the amendment.
    1st. As to the jurisdiction of the Probate Court.
    The powers of the Probate Court have been so frequently the subject of adjudication before this Court, it is deemed unnecessary to argue the point submitted in the present case. Such portions of the previous decisions of this Court, as bear on the present case, will be briefly noticed ; from which it will appear, that if even the petitioner were entitled to relief, she mistook the form in seeking it.
    The provisions of the Constitution are the source and the boundary of the jurisdiction of the several Courts of this State. They have no powers except such as are expressly granted, and those that are incident thereto. 3 H. Rep. 254. Article 4, sec. 16, of the Constitution, provides, that “ a separate Superior Court of Chancery shall be established, with full jurisdiction in all matters of equity.” This Court, then, has the jurisdiction of every case properly belonging to a court of equity, if the same has not been expressly, or by necessary implication, vested by the Constitution in another tribunal. 3 H. Rep. 255.
    What is, or is not, a matter of equity jurisdiction, is left to be determined by the rules of the Common Law ; and it embraces such matters of equity, as the Chancery Court has possessed by immemorial usage, or particular legislative enactments. 4 H. Rep. 175. To carry out, and enforce the execution of such a power, as that granted to the executors of Abram Green, deceased, with respect to the sale of the real estate, and the provision contemplated thereon for the widow, when a partial execution has taken place, has been a branch of equity jurisdiction by immemorial usage; at least, the exercise of such a power is peculiar to a Court of Chancery. 1 Story’s Equity, 180, 181, and the cases there cited.
    If the executors sold the real estate by virtue of the powers intrusted to their discretion, and it is taken for. granted that they did, and if there were a fund remaining which was produced by a sale of the real estate, after satisfying the first demands upon it, which by the will was the payment of the debts (see article 8 of the will, p. 2 of the abstract), then upon their failing to provide the widow with the place of residence, equity would step in and enforce a complete execution of the power, if the fund in the hands of the executors were sufficient for that purpose. But is there any such power in the Probate Court ?
    The Chancery Court and the Probate Court are not courts of 
      concurrent, but exclusive jurisdiction, over the matters committed to each by the Constitution. 3 How. Rep. 254 ; 2 ib. 856. The power, then, in question, is vested exclusively in one or the other. It will not be denied, that the exercise of the power in question has been a branch of equity jurisdiction, and that by the Constitution it is vested in the Superior Court of Chancery (Con. art. 4, sec. 16 ;) unless it is taken out of the matters of equity jurisdiction, previously exercised by the Chancery Court, and vested in the Probate Court by sec. 18, art. 4, of the Constitution. We believe that the power is not confided to the Probate Court to enforce the performance of such a trust as was created by the will of Abram Green, deceased, with respect to the control of the executors over the real estate, and the fund which, in the event of a sale, might be left in their hands to provide a residence for the widow during her life; but that the power is confided by the Constitution to the Chancery Court.
    Art. 4, sec. 18, of the Constitution, provides that a Court of Probate shall be established in each county of this State, wi,th jurisdiction in all matters testamentary, and of administration in orphan’s business : under this provision of the Constitution, it is admitted, the Probate Court is clothed with very ample powers. This Court has repeatedly decided, that with .respect to the matters committed to the Probate Court, by the above provision of the Constitution, its powers are coextensive with those of a court of equity. 1 H. Rep. 450 ; 2 ib. 856 ; 3 ib. 252 ; 5 ib. 736.
    It has been decided by this Court, that whatever is a matter testamentary, or of administration, falls under the cognizance of the Court of Probate. 2 H. Rep. 255. But the Court at the same time remarks ; “ We do not mean to decide, however, that there are not cases arising in the course of administration which may be -proper for the interposition of a court of equity.”
    In 1 H. Rep. 456, the Court remark ; “ The Orphans’ Court has jurisdiction for taking the probate of wills, granting letters testamentary, and of administration, appointing guardians, and for examining and allowing the accounts of executors, administrators, and of guardians. One of the three characters must have attached before the Court can in any degree control the actions of the persons. These are trust characters, derived in two instances by the direct appointment of the Court, and in the third, perfected by its sanction and authority ; and there is, therefore, a superintending and supervising power in the Court, by which the fiduciary conduct of the individual is to be regulated.” This appears to show the extent of the powers of the Probate Court over a matter testamentary. Whatever the law has made it the duty of a person to perform as executor, merely, he acts under the supervising power of the Probate Court, from which, to some extent, he derives his authority, and to which he is to account for all his acts in his fiduciary capacity. But if by the will, the executor is clothed with discretionary power to do, or not to do, a particular act, which is a power conferred by the testator, by reason of the confidence reposed in particular individuals, as is the case with respect to power given to the executors -of Abram Green, deceased, to sell the real estate, and the request made of them in the event of a sale, to provide the widow ívith á “ comfortable place of residence,” although this may be a testamentary matter, in one sense of the word, yet it is a matter with which the Probate Court, it is conceived, has no power to interfere. As the act directed to be done by the executors, was left to their discretion, it was not an act to be done in their character as executors, acting under the authority of the Probate Court, in the administration of the estate.
    If the executors sold the real estate, by virtue of the discretionary power vested in them by the will, and there were a fund in their hands, arising from such sale, over and above paying the debts, which were to have been paid out of the real estate, then a coujt of equity, it is admitted, would see that such fund should be invested, as required by the will, in providing a place of residence for the widow, in which she would have a life-estate. There has been a partial performance of the power granted to the executors, and it is conceived that the Probate Court, even if there were a fund to complete the execution of the power, has no jurisdiction to enforce it, as it is a matter of equity jurisdiction, not conferred by the Constitution upon the Probate Court.
    2d. That, if the Probate Court had jurisdiction, still the judgment was correct, from the fact that the petition pointed out no fund out of which a “ comfortable place of residence ” could be provided for the widow, had an account been ordered ; and there being no equity on the face of the petition, the Court was correct in refusing the amendment.
    Upon this branch of the case we have but one remark to make.
    By the will of Abram Green, it will appear that he intended his real estate should constitute the primary fund for the payment of debts. And although Mrs. Green had a life-estate in the land, stock, &c., by the will, she took it encumbered with the liability to pay the debts ; the executors being clothed with the power to sell the same, whenever they deemed it necessary or expedient so to "do, either to pay the debts, or for the advantage of the estate generally. And, as it appears from the petition, the proceeds arising from the sale were exhausted in the payrne^roFTreonS^w^t the widow, by that application of the fund arisiA 'SSelh'i?] ^ill^qNthe real estate, has no equitable claim on the s/ecihc legacies, as ibe real estate was the, primary fund out of whjjcmmeUeMjJ^if^ttí be paid. 1 Story’s Eq. 538.
    The only fund out of which the appellant expetítésJíl<3r,r¡use a “ comfortable place of residence,” as appeai^Hi^mjihssspiSntion, was to be raised by making the legatees pay her feck the money which she alleges to have paid for their support, schooling, &c., and in the abatement of their legacies ; in other words, the appellant wants some pretext to lay her clutches on the two negroes, Charles and Malinda (to which the heirs of Abram Green were entitled on the death of Margaret in 1835), and appropriate them to her own use. But too much of the estate of Abram Green has gohe in that way already, as must be obvious even from her own statements ; and to attempt, at this late day, to make the heirs of Abram Green, who by his will appear to have had a very pretty estate left them, pay to their step-mother the amount expended in their support and education, out of their own estate, is a very extraordinary proceeding. If the appellant has advanced any money on account of the estate, she can advertise for a final settlement as executrix on the estate of Abram Green, and present her account ; it is full time that a final settlement were made, as A. Green died in the spring of 1826.
   Mr. Justice Claytíw

delivered the opinion of the Court.

This was a petition, or bill filed in the Probate Court of Claiborne county, by the appellant, as executrix of her deceased husband, against the legatees of his estate. It sets forth large claims in favor of the appellant against the legatee, running through some twelve or fifteen years, and consisting principally of charges against them for maintenance and education. Her account as executrix has never been settled. The bill prays, that an account may be taken among all the parties interested, that a final settlement may be made, the estate divided, and the negroes sold, if necessary, for that purpose.

By the will it is provided, that in the event of the death of any of the children before the age of twenty-one, and without issue, his or her share shall go to the survivors. One of the children did die under those circumstances, and the executrix in her petition treats the share of the one so dying as a part of the testator’s estate, and includes that in her petition.

A demurrer was filed to the petition, which was sustained by the Court, and the petition dismissed, from which order of dismission the case is brought to this Court.

The proceedings assume a plenary form without any order from the Judge of Probate. It seeks to bring into contestation matters entirely distinct, the estates, namely, of the original testator, and of one of the legatees, who died within the time limited by the will and without issue. No excuse is shown for a failure to settle the estate in the usual way, and the petition seeks to have a sale decreed not to pay deb,ts of the testator, but debts alleged to be due from the legatees to the executrix, for maintenance and education.

The legatees now appear to be all of a full age, and if they are indebted to the petitioner, her remedy is not by proceeding in the Probate Court. That Court has no jurisdiction over some of the objects embraced in the petition ; and from the frame of the petition in other respects, especially in joining incongruous interests and subjects, cannot be maintained.

We think the order of the Probate Court dismissing the petition was correct, and we direct it to be affirmed, without prejudice, however, to any future proceedings the petitioner may institute.

Decree affirmed.  