
    NOVEMBER TERM, 1844.
    John D. Freeman, Administrator of James W. Scanlan v. Jeremiah M. Rhodes and Maria L. Rhodes, Administrator and Administratrix of Amos Whiting.
    A creditor of a decedent cannot call the administrator of the intestate to account in the Probate Court, without averring that his claim is legally authenticated against the estate, and that there is an insufficiency of assets, or that the estate is insolvent.
    A general creditor, when there is no apparent impediment to the recovery of his claim by suit at law, cannot coerce the administrator to account generally in the Probate Court.
    The judgment of a Probate Court receiving and confirming the report of auditors, to whom an administrator’s account of assets, &c. had been referred, cannot be reversed or set aside by the same court, at a subsequent term.
    In such a case, if the judgment be erroneous, the proper remedy is by appeal or writ of error to this Court.
    On appeal from the Probate Court of Claiborne county.
    On the 26th of April, 1841, John D. Freeman, administrator of James W. Scanlan, deceased, filed his petition in the Probate Court of said county, showing that George Lake and Maria Louisa Whiting originally took out letters of administration on the estate of Amos Whiting, deceased ; that since that time, the said Maria L. Whiting had intermarried with Jeremiah M. Rhodes, who after-wards qualified as administrator ; that the sureties of the said George Lake and the said Maria Louisa have become insufficient, and that the petitioner, administrator as aforesaid, had a claim against the estate of the said Amos Whiting for about $600. Various acts of mal-administration are charged upon the said administrators, and the petition prays that the orders of sale previously and improvidently granted to them may be rescinded, and that they be required to account for all the assets in their hands, and all' the rents, issues, and' profits belonging to the said estate, as also all the negro slaves purchased by them at sheriff’s sale, and that they be required to. give further good and sufficient security.
    
      Whereupon an order was made by the Court, rescinding and annulling the said sales, and citation ordered, requiring the said administrators to appear and give additional security, or their letters be revoked.
    At the May term, 1841, the said Jeremiah M. Rhodes, and Maria Louisa, his wife, came and filed their answer to the petition of the said John D. Freeman, administrator as aforesaid, denying the matters alleged and charged therein ; said answer sworn to and signed by the said Jeremiah M. Rhodes alone.
    Afterwards, at the July term, IS41, the said John D. Freeman, as administrator aforesaid, obtained leave to amend his petition previously filed, and filed his amendments thereto, charging further acts of mal-administration.
    At the September term, 1841, came the said Rhodes, and Maria Louisa, his wife, and filed their answer to the said amended petition, denying all the allegations therein.
    At the same term the account of the said Rhodes, administrator as aforesaid, was referred by order of the Court to three referees, to audit and examine the same, and report thereon.
    At the October term, 1841, the referees reported the account to the Court, showing a cash balance of $5976.59 due to said Rhodes, administrator as aforesaid, by the estate of Amos Whiting, deceased. Which said report was received and confirmed by the Court at the same term ; and at the same time the letters of administration of George Lake, Maria L. Whiling (now Maria L. Rhodes), and Jeremiah M. Rhodes, on the estate of Amos Whiting, deceased, were revoked by order of the Court, they having refused to give counter security or execute a new bond, and letters of administration de bonis non were granted and issued to Fletcher Creighton ; and it was further ordered, at the same time, that said Creighton, as administrator de bonis non, should pay over out of assets that might come into his hands, as a privileged claim, the sum of $3329.52, the amount of commissions allowed by this Court to said Rhodes, late administrator of said estate ; as also the sum of $5976.59, the balance settled by the referees to whom the account of the said Rhodes was referred, as being due to said Rhodes from said estate.
    
      At the November term, 1841, the said John D. Freeman, ad,-ministrator as aforesaid, filed another petition, praying that the above-mentioned orders might be set aside, and the accounts of Rhodes wholly reopened. The grounds set out in the petition are, that the account was referred to auditors, in the absence of petitioner’s attorney, while a bill for discovery was pending against the said 'Maria Louisa Rhodes, unanswered by her, and that he could not safely go into evidence on the reference without the answer and discovery of said Maria Louisa, as well as the answer and testimony of George Lake ; that the account was audited ex parte, as appears by the report of the auditors, and was false and fraudulent; that said Creighton, administrator de bonis non as aforesaid, is directed to pay said Rhodes, as a privileged claim, $9300, which order is predicated on said^alse and fraudulent account, and also for commissions, which can only be allowed on final settlement.
    At the December team, 1841, leave was granted'to the said Freeman to amend his petition, filed at the November term, generally, and citation ordered to issue against Jeremiah M. Rhodes, administrator as aforesaid, to be and appear at the next term of this Court, to show cause why the order of the Court made at the October term, 1841, confirming the report of the auditors on the account of sajd Rhodes, should not be reversed and annulled.
    The amended petition states, that it is contrary to law and equity to allow the partial account of an administrator as a privileged claim, or to allow commissions to an administrator before final settlement of all his accounts, and that certain items were improperly allowed for extra services, &c.
    At the January term, 1842, came the said J. M. Rhodes and his wifé, and demurred to the petition, and the Court sustained the demurrer, and dismissed the petition.
    From this order, sustaining the demurrer and dismissing the petition, the said John D. Freeman appealed to this Court.
    
      J. Crapoo, for appellant.
    1. The account (p. 2) of Rhodes is expressly charged to be fraudulent, and that the fraud consist in his mingling his own private •accounts with the proper accounts of the estate. This charge of fraud must be taken to be true, and in the face of this charge it was error in the Probate Court to dismiss the petition.
    But the answers and account of Rhodes disclose fraud on their face.
    Rhodes swears, that the wood chopped and sold by him was chopped at, his own expense, and yet in page 24 he charges the estate with "$82.63, for chopping wood; that is, he charges the estate with the expense of chopping wood, and at the same time he refuses, in his answer to account for it, because, as he swears, it was chopped at his own expense.
    Rhodes again swears, that the net proceeds of the crops, for the years 1839 and 1840, were nearly $9000, and yet he brings the estate in debt to himself for upwards of $5000 ; how could the net proceeds exceed $9000, when the expense exceeds the entire crop by about $5000 ?
    Further, the vouchers.are stated to be withdrawn by the administrator Rhodes, by leave of the Court.. The fact of withdrawing these vouchers is evidence of fraud, and it was error in the Court to permit it. If the vouchers were all fair, why withdrawn ?
    Rhodes claims the White-hall plantation in lieu of the dower of his wife ; there is no evidence that there was any other plantation for which supplies were furnished, and if there was, he has rendered no account of it. He charges $1251.02, by cash paid M. W. Neale, the amount of his account for 1840, for plantation supplies. Now the item must be a charge against the estate for the plantation supplies of the White-hall plantation, which Rhodes claims as his own plantation, or it must have been for plantation .supplies .for some other plantation which he has not mentioned either in his answer, or in his account. It was fraudulent either way. If he charges the estate for supplying his own plantation, it was clearly fraudulent. If, on the other hand, the $1251.02, was furnished for some other plantation, then he has committed a further fraud on the estate by failing to account for the proceeds of a plantation which he has charged.the estate with having supplied.
    It does not seem necessary to point out every item of fraud which the account contains ; it is sufficient to remark, that almost every item in the account could be shown to be fraudulent, and the few items which do not show fraud on their face, probably could have been proved to be so if the Probate Court had gone into evidence on the petition instead of dismissing it.
    But the allegations in the petition must be taken as true, for the purpose of trying this appeal, — Rhodes having demurred to the petition, thereby admitted the facts stated in it to be true.
    It is further charged in the amended petition, that the account of Rhodes is a partial account, and not a final account; and that it was. contrary to law to allow commissions to an administrator before the settlement of his final account. And further, that the order of Court expressly shows, that the account was a partial account, and not a final account.
    In How. & Hutch, pages 414, 415, sec. 96, 101, the statute declares, that the Court shall allow a reasonable compensation to an administrator on the final settlement of his account. This language is too plain to admit an allowance of compensation on the partial settlement of his accounts. The Courts are prohibited from allowing commissions except on final settlement.
    Again, it is expressly charged in the petition of Freeman, that the account of Rhodes was audited ex parte, and it appears from the report of the auditors, that their report was grounded upon the oath of Rhodes himself, and of no other witness. It would seem to be improper to allow an account on the bare oath of the defendant, after the account had been excepted to. In this case, Freeman had filed exceptions to Rhodes’s account.
    The counsel for the appellee is mistaken when he states, that there is nothing to warrant a bill of review in this case, if bills of review are 'applicable to the Probate Court.
    Bills of review are granted only in two cases : first, for errors of fact, when the party did not know the facts, and could not have known them on reasonable diligence ; and, secondly, for errors of law. The errors alleged in this case are ‘errors of law, and in any court of equity would be sufficient to annul the decree.
    , But the appellant does not rest solely upon these errors of law ; it is the gross fraud which runs through his entire account, and which .he has palmed upon the Court of Probate, which constitutes the . main cause of complaint. If these frauds, with which any Court is liable to be deceived in an ex parte proceeding, cannot be reversed, then any degree of fraud may be practised in the Probate Court, and there will be no power'of reaching it. The doctrine is too monstrous to be entertained in any Court, where justice is intended to be administered.
    It is further stated by the counsel for the appellee, that an execu'tor, who has out of his own property satisfied a debuof his testator, is entitled to repayment out of funds that may come into his hands ;' this is undoubtedly true, but this is very different from a decree of repayment as a privileged claim,- as in the present case. The decree is contrary to law; and the counsel further states, that he may retain assets to the amount of the payment, even though he has only given his bond to pay it. This may not always be true.
    Suppose Lake and Rhodes (as is the fact) have given their joint note in satisfaction of a debt due from the estate, they being both administrators, which of them would be entitled to retain the amount of the bond ? If the bond was for $9000, would they divide the amount ? Perhaps one of them is solvent, and the other insolvent; shall the insolvent have credit for $4500, when the solvent man must pay ?
    The decree is against law, because it allows commissions on the settlement'of the partial account of Rhodes; and because it decrees that the commissions and the balance found in favor of Rhodes, should be paid as a privileged claim. Is there anything in Rhodes’s case that should give him any privilege over the other creditors of the estate ? Why should he be entitled to any more favor than Mr. Lake, his co-administrator ? Yet he is singled out as a privileged creditor, when there is nothing to entitle him to it, except the frauds which appear on the face of his own account.
    The High Court of Errors andAppeals have said frequently, that the Probate Court was as competent as the Court of Chancery, in all cases to which its jurisdiction extends ; and we know that Chafi-cery will set aside its own decrees for fraud, an'd also for matter of review.
    The counsel for the appellee further says, that the answer of Mrs. Rhodes would not be evidence against Rhodes ; that Rhodes was only liable for his own defalcations. I understand the law to be different; for, although the answer of one party cannot ordinarily be read against another, yet in this case RhoHes became immediately liable on his marriage, at Common Law, for all the liabilities of his wife, and her confessions would be evidence against herself, and consequently against him ; and if her bare confessions would be evidence against him, much more would her confessions on oath be evidence against him. Mrs. Rhodes, before her marriage, was liable to account for her actings and doings in her administration ; on her marriage, that liability was transferred to Rhodes. Before her marriage, we had a right to her discovery on oath. Could she bar us of that right, by intermarrying with Rhodes ? Can a single woman relieve herself of her liabilities by marriage, and thereby annul the rights of her creditors ? Most certainly not. Then there can be no doubt that Mrs. Rhodes’s liabilities should have been taken into the account of Rhodes, and it was radically irregular and erroneous to settle his account at all without her discovery on oath ; she must necessarily know many things which occurred previous to her marriage, which he could know nothing about. Therefore, the more need of her discovery.
    
      H. T. Ellett, for appellee.
    The questions attempted to be raised, seem to be whether the Probate Court committed any error in decreeing the balance found due to Rhodes on the settlement of his accounts as administrator of Whi-tirig, and his commissions for services as administrator, to be paid by the administrator de bonis non, as a privileged claim.
    I. As to the commissions, there can be no question. The Court is authorized to allow the administrator “ a reasonable compensation for his trouble,” not,less than one, nor more than ten per cent, on the appraised value of the estate. The whole sum on final settlement must not exceed ten per cent., but there is nothing to.forbid partial allowances, from lime to time, as the services are rendered. How. & Hutch. 415, sec. 96, 101.
    In Gildart's Heirs v. Starke, 1 Howard, 450, commissions were allowed on partial settlement under similar circumstances, and not disapproved by this Court.
    In the present case, the Court allowed the gross sum of $3329, and ordered it paid out of the estate, and it nowhere appears that the amount is too lar'ge.
    2. The general balance due the administrator on settlement, stands on an equally favorable footing.
    It appears .that the administrator, in the course of the administration, paid the debts and expenses of the estate out of his own funds, and when his letters were finally revoked, with his own consent, because he could not, or would not, give the large additional security required of him, he was largely in advance to the estatp. Had he retained the administration, there can be no doubtbut he would have been entitled to retain for these advances, and it would seem difficult to place his right of reimbursement upon a different ground.
    An executor who has, out of his own property, satisfied a debt of his testator, is entitled to repayment out of funds that may come to his hands. Ram on Assets, 508 ; 8 Law Lib. 335 ; 11 Yin. Ab. 428 ; 2 Eq. Cas. Ab. 456.
    He may retain assets to the amount of the payment, even though he has only givpn his bond to pay it. Ram on Ass. 266 ; 8 Law Lib. 176 ; 4 T. R. 640 ; Sel. Chan. Cas. 50 ; 1 Sim. & Stu.461 ; Gowing v. Bland’s Heirs, 2 Howard, 813.
    There is no allegation iri this record, that the estate of Whiting is insolvent. But if that were so, it could not alter the case, if the money was advanced to the estate by the administrator in goodfaith, under the honest belief that it was solvent.
    A trustee, acting in good faith, will be protected from loss. 4 J. C. R. 619 ; 1 Vesey, 41 ; 3 ib. 565; 5 ib. 144. v
    But the question as to the right of the administrator, in case the estate should afterwards prove insolvent, does not arise upon this accord, which is silent on that subject.
    But if this decree were ever so erroneous, the Court cannot notice it; for it is not in fact appealed from. The appellant failed to appeal, and at a subsequent term filed a petition in the Probate Court, to reverse the former decree ; which petition, at another term, was amended, demurred to, and dismissed ^ and this latter decision is appealed from.
    The particular order or decree complained of must be appealed from, and within a given time. How. & Hutch. 473, sec, 20.
    
      There is no error in the decree which is the subject of this appeal. Courts cannot reverse their own judgments after the term at which they are rendered.
    The decrees of the Probate Court are conclusive, unless reversed by appeal, or set aside in chancery for fraud. See Gildart’s Heirs v. Starke, 1 Howard, 450 ; Griffith’s Heirs v. Vertner & Wi/e, 5 Howard, 736.
    Bills of review, the only exception to this rule, are equity proceedings peculiar to Courts of Chancery.
    If they are applicable to the Probate Court, still there is nothing to warrant a bill of review.
    I. The petition discloses no new matter. It only seeks to open the decree for the purpose of letting in proof of alleged facts, which were within the knowledge of the party, and ought to have been proved, before the decree was made.
    II. It does not show that the decree is erroneous on its face. The only errors assigned are,
    1. That a bill of discovery was pending, unanswered by Mrs. Rhodes. This is no error. The appellant was not entitled to the answer of Mrs. Rhodes. It is his own account, while he acted as administrator, that Rhodes settled. His wife had nothing to do with it. He alone acted, or could act, and she could not be made a witness for or against him. It abundantly appears that Lake acted alone, while Mrs. Rhodes was a widow, and Rhodes alone after-wards. No step was taken to compel her to answer. Lake was a competent witness, and his answer would not have been evidence against Rhodes.
    
      2. That it was error to allow the balance due Rhodes as a privileged claim. This point has already been argued. If the decree was erroneous, the only mode to correct it was by appeal;
    3. That it was error to allow commissions except on final settlement. This also has been argued. But the account was Rhodes’s final settlement of his administration. Was he entitled to no compensation ?
    On the whole case, it is submitted that the judgment ought to be affirmed.
    
      
      Ci'apoo, in reply.
    The Probate Court may reverse its own decrees for fraud, or for errors in law, otherwis.e the Probate Court might do the most monstrous injustice, without any power in itself, or any other tribunal, to afford relief, if the three days for appealing should happen to elapse before an appeal could be taken.
    Was it not fraud in Rhodes to charge the estate with moneys he had expended for his own use ?
    Was it not unauthorized by law that the Court should allow and decree full commission, or any commissions at all before final settlement ?
    Was it not against law, and justice, and equity, that he should have a privileged claim on an insolvent estate P Does not the law require the estate to be distributed equally among all the creditors of the estate i Then where is the authority to decree Rhodes a privileged payment to the amount of near $10,000 ?
    Was it not against common sense that Rhodes should have a decree without the answer of his wife under oath, when it was in her right, as administratrix, that he was administering the estate ? He was certainly liable on her liabilities incurred before marriage, and her oath might have shown that her liabilities far exceeded the decree in his favor ; and if so, would it not be unjust that he should be paid the whole of his claim before any other creditor, when he actually and in fact owed more than that claim, on the liability of his wife to the estate ?
    The answer purports tfi be the answer of Rhodes and his wife, but neither the first nor second answer was ever sworn to by her, as appears by the record.
    The affidavit of Rhodes does not state that his answer is true, either of his own .knowledge, or on the information of others.
   Mr. Chief Justice ShaRkey

delivered the opinion of the Court.

The appellant, on the 26th of April, 1841, presented his petition to the Probate Court of Claiborne county, in which it is stated, that as the administrator on the estate of Scanlan, deceased, he had “ a claim,” amounting to about fj600, against the estate of Amos Whiting. The most material allegations of the petition are, that an order had been granted to authorize the administrators to sell Whiting’s estate ; that debts due the estate had not been accounted for by the administrators in their inventory ; that a correct account of the crops raised on the plantation had not been accounted for ; that the administrator Rhodes had purchased at sheriff’s' sale eleven negroes, belonging to the estate, with the money thereof; that he had not accounted for rents and profits of real estate re*-ceived by him, for wood sold to steamboats, and for the profits of a market garden, &c. The prayer is, that the administrators may be compelled to account, and required to give new security. Rhodes answered this petition, and stated that up to the time of his intermarriage with the widow, Lake the other administrator had the entire control of the estate, and was responsible. He denies all the allegations, charging him with mismanagement and failure to account, and avers that he had fully accounted. After the answer, the petitioner obtained leave to amend, and he charges a failure to account for the profits of the slaves and plantation. This charge is denied by the answer. Afterwards, at September term, 1841, Rhodes’s account of his administration was referred by the Court to auditors, who subsequently reported a large balance in favor of Rhodes, and the' report was received and confirmed by the Court. At October term, 1841, the letters of administration w'ere revoked for want of additional security,'and administration was granted to Creighton, who was ordered to pay Rhodes the amount found in his favor by the auditors. At November term, 1841, the petitioner again obtained leave to amend, and in his amended petition prayed that the order confirming the report of the auditors might be vacated. This the Court refused to do, and dismissed the petition. The answers to the several amended petitions do not, by any admission, lay the foundation for any action of the Court, and there was no proof introduced.

In the outset of this inquiry, the appellant has to encounter a difficulty, arising from the attitude in which he placed himself before the Probate Court. He has averred that, as the administrator of Scanlan, he has “ a claim ” against the estate of Whiting ; but he has not averred whether it was á legally authenticated claim, such as'the administrator was bound to pay or not. Nothing is said as to the nature or character of the claim. But supposing it to be a valid demand, he has not shown that it was likely to be prejudiced by the acts of the administrator. He does not aver an insufficiency of assets, or the insolvency of the estate. For anything that we can know from this record, it may be the only debt against the estate, except that decreed to Rhodes, and the estate may be more than able to pay both. His attitude is that of a general creditor, whose claim is not jeopardized, seeking to coerce the administrator to perform his duty generally. There is no apparent impediment to a recovery of the claim by suit.

But suppose that he is entitled to a remedy, and that the course pursued is the proper one, still it will not follow that the judgment is erroneous. ' To determine this matter, let us look at the scope and object of the petition, and see what foundation is laid for relief. Th'e object of the petition was to coerce the administrator to render a full and fair account of all assets from all sources, and to require that further security should be given. After the petition was filed, it seems that Rhodes did render his account, which was referred by the Court to auditors, as the Court had a right to do. How. & Hutch. 4.03, sec. 66. The auditors reported a large balance in his favor, and their report was received and confirmed, by which it became the judgment of the Court. From that judgment, parties interested might have appealed, but the appellant failed to do so, and has shown no good reason for his failure. The Court did right in refusing to set aside the judgment, at a subsequent term, on the amended petition, which, even if the power of the Court were undoubted, shows no good reason why it should have been exercised. Then, in regard to the second object of the petition, to wit, that additional security should be given. Although the answer of Rhodes denies the insufficiency of the securities, and there was no proof on the subject, yet it seems the Court did revoke the letters, and granted administration to Creighton ; so that everything sought by the petition had been accomplished. If the allegations of the petition had remained unanswered, the Court could not have decreed more. It could not, from the face of the petition, have decreed that the claim of the petitioner should be paid by the administrator, for it does not appear as a claim which he would be justified in .paying. It may be that the account of Rhodes, which was referred to auditors, whose report was confirmed, was in .some respects illegal; but if so, the proper remedy for correction should have been pursued. And it may be also that the estate had been reported insolvent, and that the claim was prejudiced ; but it does not so appear from the record. As the appellant, therefore, has shown no error to his prejudice, the judgment must be affirmed.  