
    John L. Jones vs. William C. Coon et al.
    The judgments or decrees of the probate court, in allowing the accounts of ex» ecutors and administrators, rendered upon due notice, are final and conclusive, and cannot be set aside by that court at a term subsequent to that at which such judgments or decrees were rendered; and the rule is the same, whether the parties to the judgments or decrees be infants or adults, there being no saving in the statute in favor of infants.
    An account by the administrator against the estate of his intestate, for the board and maintenance of the infant heirs, is not within the jurisdiction of the probate court, and any judgment or decree of that court allowing such account, is void.
    At the September term, 1843, of the probate court of Wilkinson county, the children of C. filed their petition against the administrator of their father’s estate, alleging that, at the August term, 1841, the administrator had made a final settlement of his account as administrator, showing a balance of $3540 in his favor, which was received, allowed, and ordered to be recorded; that the account was false and fraudulent; that $3300 were allowed for the board and maintenance of the petitioners, who were then, and some of them at the time of filing the petition, infants, and without guardians ; and that there were several omissions in the inventory of the administrator. The answer admitted the omissions, but denied that they were by fraud or design. The probate court set aside the settlement made at the August term, 1841, and at the August term, 1842, confirmed and allowed a report, showing a balance against the administrator of $3001. Held, that the settlement made at the August term, 1841, so far as the account fell within the jurisdiction of the probate court, was final and conclusive ; but that so far as it allowed the administrator for the board and maintenance of the petitioner, it was erroneous and void.
    In error from the probate court of Wilkinson county, Hon. Francis Gildart, judge.
    At the September term, 1841, of the probate court, William C. Coon, Benjamin L. Coon, Amy Jane Coon, and Charles Coon, minors, by Benjamin F. Killgore, their guardian and next friend, filed their petition, alleging that they were the sole heirs of David F. Coon, who died A. D. 1831; that in that year, letters of administration on his estate were granted to his widow in conjunction with William T. Lewis ; but afterwards, on the intermarriage of their mother with John L. Jones, he took out letters of administration de bonis non, the former administrator and administratrix having taken no steps in the administration. That Jones took possession of all the estate, real and personal, and returned no inventory to the court; that the personal property consisted of nine slaves, the stock, crop and farming utensils, and other personalty of their deceased father; most of which property was sold by Jones in 1833, under an order of the court; at which sale Jones purchased two of the negroes ; that he rented out a house belonging to the estate, and received $1050 rent, and had used the unsold personalty as his own.
    That at the August term, 1841, of the court, Jones presented his account for final settlement, which was then allowed by the court, and ordered for record. That this account is incorrect and fraudulent; that it charged their father’s estate with $3200, for the support and maintenance of the petitioners, which they aver to be an illegal as well as unjust charge. The two oldest petitioners aver, that their work on the farm has more than paid the cost of their support, and that Jones has used and worked their father’s place, to which they themselves were entitled.
    That the account of the administrator was unjust and fraudulent, in failing to account for the annual crops of cotton, for the rents of a storehouse, and for divers other articles, in the aggregate amounting to about $3000; that they had applied to the administrator for a fair settlement, which he had refused, alleging the estate to be in debt to him in the sum of $2540 49£, when, as they aver, he owes it $3600.
    The prayer of the petition was that Jones might be made defendant, his final account and settlement opened and set aside, and he required to reaccount upon fair terms.
    The court awarded a citation upon this opinion, and Jones answered at the next term of the court admitting the grant of administration to himself; the reception of the property charged in the bill except one item, that no inventory of this property had been made out and returned to court by him, because he was only administering what had not been previously administered, and he did not think it necessary to make the inventory out. He admitted the reception of twenty bales of cotton raised after his intestate’s death in 1832, but averred he received it before his administration, and appropriated it to pay his intestate’s debts; that when his administration commenced he kept no accounts or receipts, but that his payments of debts exceeded what cotton he received; that his omission to include the cotton in his final settlement was accidental, having overlooked it, and being of the opinion that he had accounted for everything. He denied any fraudulent omission of it; that the corn which came to his possession was consumed by the negroes and stock before the sale; the millstones and gear he sold for ¡$1Í7; that these two last items were omitted by oversight from his final settlement; but not through fraud; he supposed they were charged in one of his annual settlements, but he finds he was mistaken; he denies a purchase of the two negroes; they were bought by Jesse Jones, and by Jesse Jones sold to him fairly and properly.
    He denied the reception of the house rent as administrator. That this house was on the land upon which David F. Coon resided before his death; that no dower had ever been allowed his widow, the wife of respondent, and he claimed the right in right of his wife to the use and rents of the plantation and all of its improvements, until her dower was assigned to her. That even if not entitled to the use of the land by virtue of his wife’s dower right, he would not be liable as administrator for the use of the lands of his intestate; that all the rents had not exceeded ¡$550.
    He denied fraud in his settlement at the August term, or injustice of his charge for board and maintenance; or that part of the petitioners supported themselves by their work.
    He admitted his continued possession of the plantation of Coon, and justified it on the ground of his wife’s dower therein; and denied, that as administrator, he could be held liable for the use of it under any circumstances.
    He denies all indebtedness to the petitioners, and avers that his wife would be a distributee equally with them, if there were any personalty to distribute.
    
      The final account of Jones, allowed at the August term, contained the following item:
    “ 9. To amount allowed J. L. Jones, for maintenance and support of the children of said deceased, as per allowance of the court, - $3200 00.”
    The voucher marked No. 9, was in these words :
    “William, Benjamin, Jane and Charles Coon to John L. Jones, Dr.:
    “From 1st January, 1833, to 1st January, 1841:
    
      “ To eight years boarding, lodging and schooling, at $100 per year, - $3200 00
    “ John L. Jones, administrator, &c. represents to the court, that since the 10th day of May, 1832, he had boarded, lodged and schooled the said minor heirs of David F. Coon, deceased; that all the duties and responsibilities of guardian of said minor heirs, have devolved upon him; that said minor heirs have never had a guardian or guardians appointed to them or either of them, until June, 1841: that he ha‘d been at great expense and trouble in the education and maintenance of said minor heirs, and did respectfully request, therefore, the above account to be allowed him for his trouble and expense in the premises.
    “J. L. Jones.”
    This statement was verified by the oath of Jones, and on the back of it was the following indorsement, made by the judge of probate : “ Examined and allowed the 9th day of August, 1841. Francis Gildart, Judge of Probates.”
    The order made at the August term, 1841, allowing Jones’s final account, was in these words :
    “ Probate Court, August Term, 1841. A final settlement of the estate of D. F. Coon, deceased, was presented to court by John L. Jones, the administrator de bonis non, and it appearing to the court that publication had been made according to law, and no person appearing to make objections, the same was examined, allowed, and ordered to be recorded.”
    
      The petition filed to the September term, 1841, to surcharge and falsify this final account, was regularly continued until the June term, 1842, when the probate judge annulled the order of allowance made at the August term, 1841, opened the final account, and referred it to three auditors to examine and restate the account, and report to the August term ensuing.
    At that term, two of the auditors thus appointed, reported an account, exhibiting an indebtedness in favor of the petitioners against the administrator, of $3001 33, in their account charging the administrator with the rent of the storehouse, of the dwelling-house, and other omitted and contested items, which it is not deemed requisite to particularize. Exceptions were filed to the account before the auditors, on the ground that the rent was an improper charge against - the administrator, which were overruled by them.
    Exceptions were taken to the auditors’ account in the court below. 1. That the auditors had passed upon matters not embraced in the petition, final account, or answer, and which were therefore not within their cognizance. 2. That they had charged the administrator with the rent of the storehouse. 3. That they had stricken out the charge for board and maintenance. 4th. That only two of the three auditors appointed had reported.
    Additional exceptions were aftenvards by consent filed, but it is not deemed requisite to notice them further.
    The probate court, after argument, received and confirmed the report and account of the auditors, and rendered a decree in favor of the petitioners, fur the sum thus reported to be due to them.
    From this order Jones appealed; but failing to perfect his appeal, he prosecuted this writ of error.
    The following errors were assigned, as existing in the record and decree below:
    1st. In entertaining the petition to set aside one of its former final orders, after the expiration of the term at which it was made.
    2d. The probate courts of this state have no original jurisdiction to set aside a judgment previously rendered by them on account of fraud.
    
      3d. In setting aside its judgment, decreeing the final settlement at a former term of the court to the plaintiff in error, John L. Jones, upon the state of the case presented by the petition, answer and exhibits.
    4th. In entertaining the petition in order to let in the charge for rents, as claimed and set forth in the said petition, and referred to in the answer upon the state of case therein shown.
    5th. In setting aside its decree made at a former term, allowing the final settlement of the plaintiff in error, and opening the whole of the final account, where only a part of the items of said final account were objected to by petitioners in their petition.
    6th. In overruling the exceptions taken by said John L. Jones to auditor’s report made in this case.
    7th. In rendering its decree at the August term of said court, 1842, in favor of the petitioners for the whole estate of said David F. Coon, deceased, and thereby depriving Mrs. Jones, the widow of said David F. Coon, and the mother of petitioners, of her distributive share or child’s part of her said former husband’s estate.
    Gordon, for plaintiff in error.
    This is a proceeding, instituted in the probate court- of Wilkinson county, by original petition, to set aside and open the, final settlement account of John L. Jones, administrator de bonis non of the estate of David F. Coon, deceased, which was allowed, and finally adjudged to him by that court, at its August term, 1841. The petition alleges that Jones committed certain frauds in the progress of his administration, and that he fraudulently omitted to account, on his final settlement, for certain property of his intestate, which came to his hands in the course of his administration. The first question that presents itself for consideration is, can the probate court entertain original equity jurisdiction, coextensive with a court of chancery in cases of fraud, or in any other case where the court of chancery has a general, original jurisdiction. I think it clear that it cannot, although it may appear that the fraud alleged originated in the progress of an administration, especially after such administration has been finally settled up and closed, and the administrator discharged from his trust. The court of chancery, in this state, is clothed with full jurisdiction in all matters of equity. Rev. Con. art. 4, § 16. Fraud is peculiarly the subject of a general equity jurisdiction. 1 Story’s Eq. 194, 195, et seq. Can it be said, then, that the court of chancery has not jurisdiction in every case of fraud which properly comes within the scope of equity jurisdiction 1 It seems to me that the bare statement of the proposition furnishes the answer to this question. But see 1 Story’s Eq. 194, (note 2) and 195; Cooper’s Eq. PI. 125 ; Chesterfield v. Johnson, 2 Yesey’sR. 155. If the chancery court, has jurisdiction of the question it is exclusive, and the probate court cannot exercise jurisdiction over it. There is no concurrent jurisdiction between the probate and chancery courts of this state. Carmichael v. Browder, 3 How. R. 252. In a recent decision of this court, Smith v. Hurd, 7 Ibid. 188, it is seriously questioned by his honor, Judge Clayton, who delivered the opinion of the court, whether the probate court has the power to entertain an original petition to set aside one of its former orders for fraud, in obtaining it. “ The general doctrine,” he says, “ is, that the proceedings must be by bill, and not by petition.” But this is a minor objection, the difficulty is as to the jurisdiction of the court in such case. The power to set aside a probate, or any other order of court, obtained by fraud, belonged, in England, not to the ecclesiastical court, which passes a jurisdiction, similar to our probate courts, “but to the chancery court.” He further says, “ By the constitution a superior court of chancery is established, with full jurisdiction in all matters in equity; the power to vacate a judgment order, or decree has, in England, been universally held to pertain to a court of equity alone. It is the exercise of an original, independent, and auxiliary jurisdiction.” But should it be considered by this court that the probate court could entertain jurisdiction of this case, we contend that that court could not set aside its judgment'rendered at the August term, 1841, allowing, and decreeing the defendant’s final settlement account, upon the state of case presented by petitioners in their petition. The petition seeks to open the final account for certain alleged frauds, on the part of the administrator, committed in the course of his administration, and prays that it may be set aside on that account. It is nowhere alleged, or charged, in the petition, that there was any fraud or impropriety committed, by any one, in procuring the judgment of the court in decreeing said final account to the defendant. A judgment, or decree, may be impeached by original bill, for fraud in obtaining it; but the particular fraud committed in procuring the decree, constitutes the principal point in issue, and it is necessary to allege it specially in the bill, and establish it by proof, before the propriety of tjie decree can be investigated. Mitford’s Plead. 3d American ed. 92, 93. The court of chancery cannot examine into the intrinsic merits of a judgment, without the aid of new-and distinct matter, showing fraud in procuring it. Hawley v. Maunches, 7 Johns. Ch. R. 182 ; Smith v. Hurd, decided by this court, quoted supra. Nor will that court entertain a proceeding which seeks to reach back and explore the consideration upon which a judgment or decree is founded. French v. Shatwell, 6 Johns. Ch. R. 236-238. In this case, Chancellor Kent, with his accustomed ability, fully examines the question, and clearly shows it to be a settled rule. An erroneous or irregular judgment, cannot be revised and corrected, or set aside, in the same court that rendered it, after the expiration of the term at which it is pronounced. 3 Wheat. R. 591; 2 A. K. Marsh. R. 11; 3 Johns. Ch. R. 280; Smith v. Denson, Administrator, &c., 2 S. & M. 339. Such erroneous judgment can only be relieved against and corrected in a court having appellate jurisdiction. Le Gaen, v. Gouventeur, 1 Johns. Cases, 492; Smith v. Hurd, above referred lo; 1 Johns. Ch. R. 91 ; 7 Pick. R. 1; 2 American Eq. Dig. 418, s. 3; 2 S. & M. 339. Ample means are afforded, by statute, in this state, H. & H. Dig. 473, s. 20, and Ibid. 541, s. 56, to any party, aggrieved by the erroneous decision of the probate court, to bring such decision before the high court of errors and appeals, for revision.. It is alleged in the petition, that certain items of the final account, decreed to the defendant by the probate court, are fraudulent, and that he fraudulently omitted to account, on his final settlement, for certain property of the decedent. The petition is not sworn to; the answer expressly denies all the charges set forth in the petition, and it is sworn to by the defendant. No proof was taken, or adduced, by either party, at the hearing. The cause was submitted, at the June term of the court, 1842, upon the petition, answer, and exhibits. The decree there made was rendered upon that state of the case. If a bill is not sworn to, and an answer is put in under the oath of the defendant, and the cause set down, and submitted upon the hill, and answer, without proof, the answer will be taken, as conclusive .of the facts which it sets up. Scott v. Clarkson, 1 Bibb’s R. 277; Pierce v. West's Executors, 1 Peters’s O. 0. R. 351; Kennedy v. Baylor, 1 Wash. R. 162 ; 3 American Eq. Dig. 383; 2 Story’s Eq. 743, 744. And if the bill is not sworn to, even under the statute of this state, (H. & H. Dig. 256, s. 78,) the rule in chancery will prevail, that it requires two witnesses, or one witness, and corroborating circumstances, to overthrow an answer put in under oath. Fonbl. Eq. 3d Am. ed. 474, (note); 2 Story’s Eq. 744; Hart v. Ten Eyck, 2 Johns. Ch. R. 92; Stafford v. Bryan, 1 Page’s Ch. R. 23. And an answer to a bill, charging fraud, responsive to the bill, denying the charge of fraud, and uncontradicted by evidence, rebuts the idea of fraud. Maury v. Blatchford, 1 Wend. R. 583; Cunningham v. Freeborne, 3 Page’s Ch. R. 557; 3 American Eq. Dig. 383. We therefore insist,that as the answer of the defendant, in this case, explicitly denies every allegation of fraud set forth by the petitioners in their petition, and also shows, by way of defence, that the grounds alleged by them, upon which they seek relief, are without foundation ; that the probate court materially erred in its judgment and decree, awarded at the June term, 1842, setting aside its judgment, rendered at the August term, 1841, allowing and decreeing to the defendant, Jones, his final settlement account. We contend, further, that the decree of the probate court, at its June term, 1842, is erroneous, because the proceedings, if that court could entertain jurisdiction of the petition, are in the nature of a bill to surcharge and falsify an administration account, previously settled, allowed, and decreed to the defendant, and only certain items of the account are objected to as fraudulent, but the decree of that term sets aside the previous decree, and opens the whole account, as well as to the items which are not objected to, as to those which are. Every charge of fraud, and every allegation set forth in the petition, by which the account is sought to be impeached, is denied by the answer, and no proof whatever is adduced upon the part of the petitioners to sustain the allegations of their petition. It is an established rule, that to allow a settled account to be surcharged and falsified, the proof is always on the party making the surcharge and falsification; and, if he fails in making such proof, the account must stand as correct. Philips v. Belden, 2 Edw. R. 1, et seq.; Pitts v. Cholmondeley, 2 Vesey’s R. 566; Brownwell v. Brownwell, 2 Brown’s Gh. R. 62. See also, Anderson v. Fox et al. 2 Hen. & Mun. R. 261, (note 1,) by Judge Tucker. It is also a settled rule, in relation to surcharging and falsifying a settled account, that the party, on being allowed to surcharge and falsify, will be limited to such items of the account as are specially objected to, and none others. The court takes the account to be established and admitted, in every respect, as just and true, except as to such items as may be surcharged and falsified by the evidence produced by the party complaining. Anderson v. Fox et al. 2 Hen. <fc Mun. 260, 261 ; 2 Edwards R. 1, et seq. ; 1 Am. Eq. Dig. 57, (Account,) s. 34, 35. The petition sets up and claims rents for a certain storehouse, situate on the plantation upon which the decedent, David F. Coon, died. The answer explicitly denies such claim for rents, and the charge of fraud, made by petitioners against the defendant, in relation to the same. And it explicitly avers, that that was the plantation upon which the said David F. Coon “ most usually dwelt next before his death; ” that his widow, the mother of complainants, and the wife of Jones, the defendant, was left in the possession of said tract of land, at the death of said decedent, and so continued in possession thereof until her intermarriage with the defendant, and that the defendant, and his said wife have continued in possession of said tract of land and premises ever since their marriage, until the present time, and that Mrs. Jones- has never relinquished her dower therein, nor has she ever had it assigned or set off to her. We insist, therefore, that, by virtue of a statute of this state, Mrs. Jones, the wife of the defendant, together with her husband, has the right “to retain the full possession of the dwelling-house in which her former husband, the said David F. Coon, most usually dwelt, next before his death, together with the outhouses, or improvements, and plantation thereunto belonging, free from molestation and rent, until she shall have her dower assigned her.” H. & H. Dig. 353, s. 45. Under a statute of the state of New Jersey, which is substantially the same as our own statute, referred to, the supreme court of that state have decided that the widow has a right to hold and enjoy the mansion-house of her husband; and the messuage or plantation thereunto belonging, until her dower be assigned her, and the court, in delivering its opinion, say : “And the estate thus given to her is not a common-law quarantine, of forty days, but a freehold for life, unless sooner defeated by the heir.” Ackerman v. Shelp, 3 Halstead’s R. 129. The same principle is recognized and maintained by Chancellor Kent, in the 4th volume of his Commentaries, 4th edition, 62, where reference is made to the case in 3 Halstead, here recited, and decisions to the same effect, in several other states of the Union, under a similar statute; 2 S.& M. 224. The widow cannot be ousted of the possession of the lands, of which her husband died seized, where she is left in possession until her dower is assigned to her. Goodlitle v. Newmun, 3 Wilson’s R. 536; Dew v. Dodd, 1 Halstead’s R. 867; 4 Kent’s Com. 63. Thus we conceive it to be clear, that the claim for rent of the storehouse, set up by petitioners in their petition, cannot be sustained, and that the probate court erred in entertaining the petition, and opening the defendant’s final account, in order to let in such charge; but, in case it should be determined by this court, that the decree of the probate court of June term, 1842, setting aside its decree, at the August term, 1841, and opening the defendant’s final settlement account, was right and proper, we contend that the decree rendered at the August term, 1842, is wholly erroneous; 1st. Because the court ought to have sustained the exceptions taken by the defendant, Jones, to the report of the auditors, and reported at that time, for it is perfectly clear that they exceeded their powers and authority, by allowing and charging in the account, restated and reported by them, a charge of $912 50, for rents of a certain storehouse, which appears by the bill of exceptions, taken before them at the time they were investigating the said accounts, and filed-with their report, and made a part of the record, to be an outhouse on, and attached to the plantation on which the said David F. Coon most usually dwelt, next before his death; and in originating claims, and investigating matters which were neither claimed or set up by petitioners in their petition, nor alluded to by the defendant in his answer, nor in the order of the court, referring the matter of the final settlement account to them. I particularly refer to that part of their report, making an allowance of $250 for the rent of a house to Mrs. Canfield. We further insist, that said auditors materially erred, and exceeded the powers conferred on them, in rejecting and expunging, without proof, from the defendant’s final account, the item of $3200, previously allowed, and decreed by the court to him, for the support and education of the petitioners. We maintain that that is a just and equitable charge, and was properly allowed to the defendant, on his final settlement. The mother, or stepfather, who may be administratrix, or administrator, will be allowed reasonable charges for maintaining and educating the minor children of the intestate, out of his estate, when there is no guardian. Carroll v. Cannet, 2 J. J. Marsh. R. 203; Darley v. Darley, 2 M’Cord’s Ch. R. 452; I American Eq. Dig. 523, s. 55. And see, particularly, Wilkes and Wife v. Rogers et al. 6 Johns. R. 566, where the subject is fully investigated, and all the authorities collected. 2dly. It is expressly shown, by the petition and answer, and specially proved before the auditors, as appears by the bill of exceptions, taken by the defendant before them, at the time of their investigation of his account, that Mrs. Jones is the mother of the petitioners, and was the wife and widow of their father, the said David F. Coon, deceased; and as such, we insist she is entitled to a distributive share of a child’s part of the personal estate of said decedent, David F. Coon, (H. & H. Dig. 352, s. 42); but by the report of the auditors, and the final decree of the probate court thereon, at its August term, 1842, the whole amount of the personalty of said decedent, Coon, is adjudged and decreed to petitioners, and their mother, Mrs. Jones, thereby unjustly deprived of her distributive share of her former husband’s estate. This, we conceive, of itself, without reference to any other of the numerous errors in this proceeding, will be undoubtedly sufficient to obtain a reversal of the decree of the probate court, made at its said August term, 1842.
    
      Smith and Davidson, for defendants in error.
    Several exceptions are taken to the order of the court during the progress of the cause, and the acts of the auditors.
    The two first are predicated upon the assumed want of jurisdiction in the probate court, to open the final account of an administrator, upon a charge of fraud in procuring an allowance of the same.
    The question of the jurisdiction of the probate court over the subject of administrators and their accounts, we deem to have been settled by the previous adjudications of this court. We think that it would be not altogether respectful now to attempt a formal argument on this topic.
    The third exception, we presume, is based on the assumption that the charge of mal-administration and fraud was not established by the admissions in the answer. The position which we have to controvert is therefore in effect this ; that when the bill contains specific charges of acts, (which, independent of the motive of their performance, are gross and palpable violations of duty on the part of the defendant,) and avers directly that they were committed with fraudulent intent; if the answer, although it admits the facts as charged, deny the fraudulent intention, the court must hold the allegation of fraud unsus-tained, unless proof be adduced establishing the fraudulent intent. It is difficult to frame any definition of fraud which would embrace every act which courts of equity have declared to be fraudulent, and it would be equally difficult to lay down any precise rule of evidence by which it is to be established. It is sometimes a question of fact, sometimes of law, and sometimes a mixed question of fact and law. In the case albar, we apprehend that it is a question of law. To neglect to return an inventory, to convert to his own use the effects of his intestate, to transfer the assets by private sale, and to neglect to charge himself with the effects so converted, with the property so sold, of the money received, are certainly acts of gross violation of duty by the administrator. If “ all unfair ways, used to cheat any one,” he fraud, (1 Mad. Ch. 256,) then fraud has been charged by petitioners, and the answer of defendant has admitted the facts; and the conclusion of fraud is the deduction which the law inevitably draws from them. The distinction between fraud where it is a question of fact, and a question of law is this : “ where it is a pure question of fact, the act done is never malum in se, but its vicious or fraudulent character depends upon the quo animo ; but where it is a question of law, it is an act prohibited by express law, or directly injurious in itself. It would be fraud in a debtor to convey voluntarily any part of his estate; the law has prohibited it, and it would not in the eye of the law, be less fraudulent if the averment were made and proved that the conveyance was not “ a way used to cheat any one.”
    So in the case at bar, the private sale of the running gear, the wagon and the twenty bales.of cotton, and the neglect to account for their proceeds, is a direct violation of his trust duties, and being admitted in the answer, draws with it the conclusion of fraud. Respondent says it was the result of mistake; how many mistakes, and all in his own favor.
    “A time there was, that when a.man’s brains were out he died.” Suppose some lover of truth in this age of doubts and discoveries, should doubt the truth of this good old saying; should deny the facts of Gall, and question the conclusions of Spurzheim. (And to us it would appear that there is much more reason to believe that some men live without brains, than to believe Mr. Jones acted throughout from mistake.) And for the benefit of science, should determine to test its truth or falsehood by a decisive experiment; he would doubtless select some man who would believe that Mr. Jones intended no fraud, as the most proper subject. In the most approved method, he deprives the subject of his experiment, of brains, and finds, contrary to his theory, that his victim has died. Would it be a sufficient answer in a criminal prosecution, for murder, for the party charged to say: True it is I did blow out the brains of the deceased, but I am no murderer, I held no malice, I am a friend of humanity, I did the deed in the honest discharge of my duty as a philanthropist, and lover of truth; but by mistake, believing that a man could live as well without brains as with them. It would not, for the plain reason that the act and its circumstances, by the law, raise an irresistible presumption that if the man were sane, he would be a murderer. So with Mr. Jones : his acts were equally in violation of law, in themselves injurious, and repeated with a deliberation acquired by habit. A single act might beset down to the frailty of memory, but a frequent repetition must be the result of intention.
    The account must be opened, and the administrator be compelled to account, although in other respects there may be error. But we believe there is none which would authorize this court to remand the cause.
    The fifth objection is predicated on the assumption, that the respondent was entitled, in right of his wife, to the rent allowed by the auditors in favor of the intestate’s estate, for two tenements. The court will perceive, by reference to the bill of exceptions taken before the auditors, that the two houses for which an allowance of rent was made, does not belong to the plantation of Jones, on which he lived at the time of his death. The widow therefore was not entitled to possession under the law securing dower to the widow. She is entitled only to the house, &c. plantation and improvements, until her dower shall be assigned. It is true Jones, as administrator, had no right to collect the rents, but having received them, they became assets in his tu.nds.
    
      The seventh, and last objection which we deem it necessary to notice, is perhaps well taken. The account stated by the auditors should, upon confirmation, have been ordered to be recorded as the final account of Jones with his intestate’s estate. That account would have shown the amount of the distributable fund in charge of respondent, to which Jones’s wife is entitled equally with the other distributees. This court must therefore reverse the order or decree of the probate court, and pronounce the order or decree which that court should have done.
   Mr. Justice Clayton

delivered the opinion of the court.

This was a petition filed in the probate court of Wilkinson county, in September, 1841, by the children of David P. Coon, deceased, against Jones, the administrator of their father’s estate, and who had also intermarried with their mother. It states that, at the August term, 1841, of that court, the defendant had made a final settlement of his account as administrator, which had been allowed and ordered to be recorded. The petitioners were then, and some of them at the time of filing the petition, infants, and without guardians at the time of the settlement. It charges several omissions in the inventory of the administrator, that various items in the account are fraudulent, and proceeds to surcharge and falsify it in several particulars. One large item objected to is the sum of $3200 for the support and maintenance of the petitioners by the administrator, although he was not their guardian. The answer admits the omission of several important articles in the inventory, but says it occurred by mistake, and not by fraud; but it contains no offer to repair the mistake. The account as settled, shows a balance in favor of the administrator of $2540. At the June term, 1842, of the court, the account as settled at the August term, 1841, was directed to be annulled and set aside, and auditors were appointed to restate it. This they proceeded to do, and at the August term thereafter, reported a balance in favor of the estate of $3000. This report was confirmed by the court, and a decree entered for the amount against the administrator, from which an appeal is taken to this court.

It has been repeatedly determined by this court, that the judgments or decrees of the probate court, rendered upon due notice, are final and conclusive, and cannot he set aside by that court at a term subsequent to such judgment or decree. Griffith v. Vertner, 5 How. 736; Chenning v. Peck, 6 How. 524; Smith v. Hurd, 7 How. 198; Smith v. Berry, 1 S. & M. 321; Addison v. Eldridge, Ib. 510; Turnbull v. Endicott, 3 S. & M. 304; Powell v. Carbry, 4 S. & M. 86.

It has even been holden that none but a court of chancery can vacate such judgment or decree when procured by fraud. Turnbull v. Endicott, 3 S. & M. 304. The petition does not allege that proper notice of the intended settlement was not given by the administrator. So far, then, as the account which was settled at the August term, 1841, fell within the jurisdiction of the probate court, it is final and conclusive, and the subsequent order purporting to set it aside is erroneous;

But the item for board and maintenance, was not within the jurisdiction of the court, as between these parties. Green v. Green, 3 S. & M. 526; 8 Mass. R. 131; 10 Pick. 429; North’s Pro. Court, 175, note. If the relation of guardian and ward had subsisted between the parties, it might have fallen under its cognizance.

The fact that some of the petitioners were infants at the time of the settlement, cannot avail them. There is no saving of their rights by the statute, and without such saving, they are bound by the judgment and settlement equally with adults.

The decree of the court below must be reversed, and the cause remanded. If the petitioners can show that legal notice of the settlement was not in fact given, they can amend the petition so as to put that fact in issue, and thus determine whether the judgment were valid or void. If, however, the notice were given, the petition, in its present shape and extent, cannot be sustained.

The court had no jurisdiction, in the present attitude of the case, over the item or charge for board and maintenance, and the decree in that particular is void. The petitioners may therefore disregard that charge, and amend their petition so as to go for an order of distribution, if anything is due them after expunging this item. But the administrator, if anything is due him from them, will not, by this opinion, be precluded from its recovery in the appropriate tribunal. All we mean to say is, that this charge was not properly included in the settlement; that it was not within the jurisdiction of the court as the matter was then presented, and is therefore still open to investigation.

Decree reversed.  