
    CARUTHERS v. CARUTHERS.
    Chanceby PbACTICE. Administration. Creditors. When quasi parties. An administrator, with, the will annexed, filed a bill against the heirs, devisees and legatees of the testator, for the purpose of executing, under the orders of the court, a power conferred upon the executor by the will to sell land for the payment of debts, and obtained a decree accordingly, under which some of the creditors came in by petition and had their claims allowed without objection, after which an order was made directing the master to ascertain and report the other indebtedness of the estate, and he reported certain claims, to the allow-anee of which exceptions were filed. Held, on appeal from the ruling of the Chancellor on the exceptions, that an objection for the first time made in this court to the form of the proceedings could not he entertained ; that the creditors whose claims were admitted by the master were quasi parties to the suit, and their coming in under the order would be a bar to all other proceedings on their part.
    FROM MADISON.
    Appeal from the Chancery Court at Jackson. H. J. LIVINGSTON, Ch.
    H. W. McCorry and E. S. Mallory for complainant.
    E. L. Bullock, J. L. H. Tomlin and H. E. Jackson for defendants.
   Cooper, J.,

delivered the opinion of the court.

In March, 1863, James Caruthers died ^estate. His will was admitted to probate in October, 1865, and the executor named therein having died also, the complainant, J. H. Caruthers, was appointed and qualified as administrator, with the will annexed. The testator, by his will, directed his debts to be paid as soon as possible out of any money he might be possessed of, or which should first come to the hands of his executor, and gave the executor “full power to sell and convey” any of the testator’s property, “real or personal,” for the purpose of paying debts and supporting the testator’s children. The power thus given vested in the administrator with will annexed by statute. Code, sec. 2240. Harrison v. Henderson, 7 Heis., 316, 347. The bill in this case was filed on the 10th. of August, 1866, against the heirs, devisees and' legatees of the testator, for the purpose of executing the trusts of the will, and especially the trust for the-sale of land to pay the debts. The bill stated the' personal assets which came to the complainant’s hands as administrator, and the amount which would probably be realized, about $4000, that the debts already presented, a list of which, giving the names of the creditors and the principal of their respective debts,, was inserted, amounted to $29,125, and that the addition of interest and other debts would run up the total indebtedness to near $40,000. The bill gave a detailed statement of the lands of which the testator died possessed, and asked that the court decree a sale of said realty, or so much thereof as may be necessary to pay the debts and carry out the provisions of the will for the support of the testator’s children and grandchild. The adult defendants answered the bill, admitting the existence of the indebtedness as stated, though not all the details, and the necessity of a sale of the realty to pay debts. The cause was heard on the 20th of August, 1866, upon the pleadings, and it was referred to the master to take proof and report the amount of the indebtedness of the estate, the amount of available personal assets, and whether a sale of the realty was necessary to pay debts, and to carry out the provisions of the will. The master made his report to the same term, showing an indebtedness of about $30,000, and that the available personal assets would not be over $4,000, and that it was absolutely necessary to sell land to pay the debts and execute the provisions of the will. The report not being excepted to, was confirmed by the court upon a final hearing on the pleadings and report, and the decree, after reciting the facts, declared that it appeared to the court that said estate was indebted in a large amount, to-wit, about the sum of $30,000; that the available personal assets did not exceed $4,000, and was, of course, insufficient to pay the debts, and decreed that the complainant be appointed special commissioner to sell the lands set out in the bill and decree, or so much thereof as may be necessary to pay the debts and support and educate the testator’s infant children. This decree was never appealed from. Afterward, from time to time, several creditors of the estate came in by petition, had their claims referred to the master to be reported on, and obtained decrees without objection. On 'the 7th of December, 1873, a decree was rendered which, after sustaining these claims, referred it to the master to take proof and report the-other indebtedness of the estate, what lands had been-sold, the manner in which the proceeds of sale had been applied, and the realty not yet sold. The master made his report, and the defendants filed exceptions to some of the debts, which, at the June term, 1874, were overruled, the report confirmed, except as to the claims of Garland and Theus, and the lands ordered to be sold in satisfaction thereof. The defendants appealed from this decree, and Theus and Garland afterward brought up the case by writ of error. '

At the last term this court held, in substance, that. tbe bill was not filed for the purpose of administer-, ing tbe testator's estate under our insolvent or other statute laws, by which the creditors are required to become parties to the proceeding by petition and answer. Reid v. Huff, 9 Hum., 345. That it was a bill to execute the trusts of the will of James Ca-ruthers, and the power of sale to pay debts, etc. That the decree of the 24th of August, 1866, was in full force, binding on the parties; that the creditors who had come in by petition and had their claims passed upon without objection, had acquired valid rights under the decrees. The decrees were, therefore, affirmed, and the case remanded for the purpose of executing them by a. sale of the lands, but retained in this court as to three claims against the estate for a re-argument. These claims are those of Ewell and wife, E. F. McKnight, and Theus and Garland, the first two of which are included in the list of claims .in the bill. The main objection to all of these claims is that the creditors have never made themselves parties to the suit, nor are they made parties by the frame of the bill. This objection would be entitled to grave consideration if the bill had been filed under our statute laws. For, in such cases, the practice is to treat the creditors as patties, made so by name in the bill, or- by petition subsequently. Even in these cases, however,' the mention of the creditors by name in the bill as having just claims against the estate, would probably make them parties within the spirit of our decisions. Henderson v. McGhee, 6 Heis., 55. This bill, as we have seen, is not such a suit. Its object was to enable the administrator to execute the trusts of the will, and especially in the sale of land for the payment of debts, under the orders of the court. Under such a bill, after a decree has been rendered declaring the trusts and ordering a sale, it is an order, of course, for creditors to file their claims. And when the master has admitted the claim of a creditor, he becomes quasi a party to the suit, and it is not necessary to bring him before the court by a supplemental bill, or petition by himself. 2 Dan. Ch. Pr., 1211 (4th Ed). The parties to this suit seem to have entrusted the administrator with the settlement of the debts, but the decree of the 5th of December, 1873, expressly directs the master to ascertain and report the unpaid debts. It is intimated that this order was at the instance of the court, not the parties. But the court acts only upon the application of parties, and the decree does not show that it was made otherwise than in the regular way. It is also suggested that the creditors did not appear and present their own claims. But the record shows that the claims were admitted by the master, which could only be legally upon the presentation of the claim by the creditor, and besides, the creditor might adopt the act. In either event, the act would be a bar to all other proceedings on his part. Neve v. Weston, 3 Atk., 557; 2 Dan. Ch. Pr., 1617. The exceptions, moreover, on which the action of the court is invoked, raise no such issues, and the objection cannot be made in this court.

Another objection urged is, that the claims are barred by the statute of seven years; but the exception actually taken is, that suit was not brought within seven years from the death of the testator, or the qualification of the administrator. The recovery of judgment on each of these claims against the administrator meets this objection. Henry v. Mills, 1 Lea, 144. The Ewell judgment is sufficiently shown, prima faeie, by the record introduced by the defendants in support of one of the exceptions (Duncan v. Gibbs, 1 Yer., 256), while it does not support that particular exception because, although the creditors may not have been parties to this suit at the filing of the bill, they may have become so before the exception was filed, based on that ground. And the pendency of an independent bill by a creditor, where there had been no decree, is not a bar to the creditor coming in under the reference. 2 Dan. Ch. Pr., 1614.

The judgment in favor of Theus and Garland against the administrator is by confession under a power of attorney. The judgment recites the power, which is sufficient in form. It does not recite that the execution of the power was proved, nor does the Code, secs. 2978, 2979, prescribing the mode and effect of a judgment by confession, demand such a requirement. And although both the judgment and the power bear date • after the expiration of two years and six months from the qualification of the administrator, non oonstai, that the delay was not at the special request of the administrator.

The exceptions to these claims are not well taken, and the decree of the Chancellor must be affirmed as to the claims of Ewell and wife and McKnight, and reversed as to the claims of Theus and Garland.

The cause will he remanded for further proceedings.  