
    Ezekiel Harris et al. vs. George Fisher, Beverly R. Grayson and Nancy Brown, Administrators and Administratrix of Jesse S. Brown, deceased.
    The probate courts, in this state, have no power to entertain a bill of review; such hills are peculiarly matters of chancery jurisdiction.
    The probate court has no jurisdiction of a bill to correct the general course of administration, by having accounts and reports disallowed, which the court had formerly approved ; objections should have been made to the reports and accounts when allowed.
    If an administrator, after the estate is reported insolvent, discharge debts not privileged, the payment is illegal, and he is guilty of a devastavit; but the probate court has no other control over him for it, except to refuse to allow his accounts, or to remove him from office; the remedy for a devastavit is in another forum.'
    If the commissioners of insolvency refuse to report upon the condition of the estate, the probate court has ample power to compel them to do so ; but cannot entertain a bill by the creditors for that purpose, and to have a payment directed to all the creditors of their respective claims.
    In 1843, various creditors of the estate of B., deceased, filed a bill in the probate court against the administrators of B.; alleging that B., at the time of his death, had property sufficient to pay all his debts, which had come to the hands of his administrators ; that the administrators had improperly used the assets, and in the year 1838, had fraudulently procured a declaration by the probate court of the insolvency of the estate ; that the account upon which the representation of insolvency was made, was erroneous upon its face, in showing that a large amount of debt had been paid before insolvency; that all of the debts reported, were not those of the deceased; and that a large amount of the assets had been used; the bill further stated that the debts of the creditors had been put off for six years by the administrators, who had, since the declaration of insolvency, paid off to chosen creditors large sums and one of them had retained a large sum due himself; that in 1839, the administrators, without notice and in vacation, had made an erroneous settlement with the court; in which were contained claims paid without proof of authentication,, and others barred by the statule of limitations ; the prayer was that the administrators account for the assets received, and pay the creditors their debts, if the estate was solvent, if not, their pro rata proportion: Held that the probate court had no jurisdiction of the bill.
    In error from the probate court of Yazoo county.
    Ezekiel Wright and others, trading in partnership, under the firm of Harris, Wright & Co.-, Robert E. Mitchell and George P. Bierne and George W. House, partners, under the firm of Bierne & House, at the January term, 1843, of the probate court of Yazoo county, filed their bill of complaint against Beverly R. Grayson, George Fisher and Nancy A.. Brown, administrators and administratrix with the will annexed of Jesse S. Brown, deceased, and Morgan L. Fitch; in which they aver that in the year 1836,. Grayson, Fisher and Brown, obtained their letters of administration upon Jesse S. Brown’s estate; that the complainants had respectively, in the year 1838, obtained judgments for sums due them by Jesse S. Brown in his life-time, against the administrators and administratrix; they the administrators and administratrix had received into possession, of the testator’s property, $53,950 50 ; that besides $20,000 were due their testator in debts and other choses in action, which had come as assets into their hands; that they had carried on his farm, with his negroes and stock for the years 1836, 1837, and 183S, after his death, and had made five hundred bales of cotton, worth $15,000, and four thousand bushels of corn, worth-$4000, which became assets in their hands; that they had received from rent of other'portions of the realty of Brown, about $2000 more in assets ; that they had sold other of his lands for $40,000 ; one half of which they had been paid.; the other half was yet unpaid in their hands; that these various assets are sufficient to pay all his debts; yet that. for the purpose of hindering, delaying, and defrauding his creditors, and making themselves rich, they had, in 1838, reported to the probate court a schedule of the debts due by him, and of thevalue of his real and personal estate, and had shown a deficit of the latter to discharge ■ the former, of $1397 71, by which, means they had procured the estate to be declared insolvent, and Charles E. Mount and Morgan L. Fitch to be appointed commissioners of insolvency; that there was manifest^rror in declaring the estate insolvent in this; that the schedule showed that $13,000 had been previously paid to real or supposed creditors before the order of insolvency was made; that twenty-one of the items of alleged indebtedness in the schedule, were not debts of their testator, contracted by him, but debts due by themselves subsequent to his death; and that they had expended in their administration $35,000; and had charged the estate with it; that Fitch, appointed as one of the commissioners of insolvency, was, when appointed, and still is, an attorney of the administrators, and had uniformly refused to unite in bringing in the report of the commissioners, and had withheld all the papers and claims presented to him and the other commissioners for allowance, by which means no report had yet, after a lapse of more than four years, been made; that the administrator and adminis-tratrix had, for six years, under various pretences, refused to pay any creditors except those they wish to favor; that since the declaration of insolvency, they had paid out to chosen creditors $30,000, of assets; and that Fisher, one of the administrators, had paid himself $10,000 before the declaration of insolvency, and had retained a similar sum since, under the pre-tence of its being due for goods sold- and other considerations ; that the administrators and .administratrix pretended to have had a settlement in 1839 with the court; but it was had without notice, was allowed, if at all, in vacation, and not in term time, and was admitted to record without any order or authority of the court; and was erroneous upon its face, in containing demands contracted since the testator’s death; accounts not verified by the oath of the creditor; claims not presented within the time prescribed by law and others barred by the statute of limitations.
    The bill prayed for subpoena and answer; and that the court would decree, if the estate was found to be solvent, that the administrator and administratrix might pay the sums due the complainants respectively, or if insolvent, their pro rata portions, and that the like relief might be extended to other creditors who might come in under the decree, and establish their claims ; and that the administrators and administratrix should give a full account of each and every item of disbursements and receipts since they first administered; and that the commissioners of insolvency in the mean time cease further action.
    To this bill, the various defendants appeared and answered, denying the frauds charged ; and demurred as to the rest of the bill.
    The court at the same term, after argument, sustained the demurrer, and dismissed the bill at the complainants’ costs; from which order they prosecuted a writ of error to this court.
    No counsel appeared for plaintiffs in error.
    
      Wilkinson and Miles, for defendants in error,
    filed the following brief:
    This is a bill filed in the court of probate of Yazoo county, by various creditors of Jesse S. Brown, deceased, against his administrators, complaining of an order of the court appointing commissioners of insolvency on said estate, and declaring it insolvent. The prayer of the bill (which is loosely drawn) is that the administrators may account, and for general relief; but its principal object appears to be, to revoke the order of the orphans’court declaring the estate insolvent. The defendants, in their answer, deny all fraud, and demur to the rest of the bill. The demurrer was sustained by the probate court.
    The demurrer was properly sustained for these reasons :
    1st. The bill was not filed until after the lapse of three years from the decree of insolvency. This fact is apparent from an attentive reading of the bill.
    2d. The bill is multifarious, as creditors having separate and independent demands join in it.
    3d. They seek not only an account, but a decree of the court for the payment of their claims by the administrators, a recovery which can be had only in a court of law. See 2 S. & M. 304.
   Mr. Chief Justice Shaekey

delivered the opinion of the court.

The plaintiffs in error instituted this proceeding in the probate court of Yazoo county, by bill, to which the respondents demurred, and the demurrer was allowed by the court. The case therefore depends entirely on the merits set out in the bill. The bill is in the name of three separate and distinct creditors of the estate of Brown, who profess to proceed for themselves, as well as all other creditors. The defendants are administrators with the will annexed, letters having been granted them at March term, 1836.

The bill charges that assets to the amount of $53,950 came into the defendants’ possession, as appears by the inventory, besides money and choses in action to about the amount of $20,('00. That the administrators carried on the farm for three years, and realized from the crops of corn and cotton $19,000, and two thousand dollars for the rent of land. That by orders of court the land was sold for $40,00.0 ; and that the assets from these various sources, were sufficient; to pay the debts. The administrators are charged with an improper use of the assets, and with having fraudulently reported the estate insolvent, on which report the court declared the estate insolvent, at the March term, 1838, and appointed commissioners of insolvency. The bill also charges that this decree of the court was erroneous upon the face of the proceeding. 1st. Because by the schedule presented, it appeared that large amounts of debts had been paid before the report of insolvency; 2d. Because a portion of the debts returned, were not contracted by Brown in his lifetime, but by the administrators; 3d. Because the.schedule showed that $30,000 had been paid out. An objection was also made to the appointment of the attorney of the estate, as a commissioner of insolvency, who was fraudulently combining with the administrators, and had refused to join in making a report. It is further alleged that the administrators for the last six years, have failed to pay the complainants, under various pretences. That since the report of insolvency, the administrators had paid off to chosen creditors, large sums of money, one of the administrators having retained a large amount due himself, before the estate was declared insolvent, and another large debt afterwards, for goods sold. There is also an allegation that a settlement with the probate court, pretended by the administrators to have been made at July term, 1839, was made without legal notice, and that the account was not in fact approved by the court, the indorsement of the judge, although professing to have been made in term time, having in fact been made in vacation: That the account so allowed was erroneous, because some of the payments therein specified,'had been made after the report of insolvency, and others were for debts not'chargeable to the estate; and' also, that some of these claims were paid without being properly authenticated, and others were barred by the statute of limitations. The prayer is for a citation, and that the administrators account for all sums of .money received by them, and also that the administrators be decreed to pay the complainants the amounts due them, if the estate should be solvent, or their fro rata dividend, if it should be insolvent.

This bill is so comprehensive, that it is difficult to find statutory provisions sufficiently broad for it to rest on. In some of its features it approaches too closely to a bill in chancery, to be properly cognizable before the probate court. It is true the probate court may direct plenary proceedings, and compel an answer,on oath, but its powers are confined strictly to matters testamentary. This is emphatically a creditor’s bill, which is ordinarily brought in a court of chancery. And it would seem also to have been designed as a bill of review, which is peculiarly a matter of chancery jurisdiction. There is no statute conferring such power on the probate court, nor is it believed to be at all necessary that such power should be exercised by-that court. Neither is it a necessary incident to any granted power. The statute gives a simple and speedy, method of correcting the. errors of the probate court, by appeal from any order or decree, and courts of special jurisdiction are to be confined' to the exercise of the powers granted, together with such incidental power as may be necessary to enable them to exercise efficiently the jurisdiction granted. By an examination of the doctrine applicable to bills of review, it will be found to be incompatible with the legitimate powers of the probate court. 2 Maddock’s Chancery, 536 ; Mitford’s Pleading, 127. But there are other objections to this, as a bill of review. The errors complained of, exist in'the schedule of liabilities presented by the administrators when they reported the estate insolvent. The schedule was but a matter of evidence on which the decree, or order, for it does not appear that there was a formal decree, was based. A bill of review will not lie, because the matter decreed is contrary to the proof, or because the court misunderstood any fact in the cause, if the error be not introduced into the decree. 2 Maddock’s Chancery, 538. Another objection is, that the cause has not been finally disposed of; it is still before the probate court; and a bill of review will not be entertained until after a final decree, and the parties are out of court. Bowyer v. Lewis, 1 Hen. & Mun. 554; Ellzey v. Lane’s Ex’r. 2 Ib. 589.

The bill also charges matter which is a' devastavit on the part of the administrators in the payment of debts after the report of insolvency, a matter over which the court could exercise no other control than by refusing to allow their accounts or by removing them from office, but these accounts do not seem to have been presented. If the complainants desire to be relieved against this illegal payment, their application is premature, unless it be relied on as a cause of removal. They may object to the allowance of this item in the account when it is presented. The remedy for a devastavit is in a different forum.

Another charge is, that they have failed to pay the complainants. The answer to this is, that they were not bound to pay until a dividend was struck. If the commissioners had improperly failed to report, the court has power to coerce them, and a simple application for that purpose would have accomplished the object.

This bill seems to have been filed to obtain a review of an order of the probate court; to correct the general course of administration, by having accounts and reports disallowed which had formerly been approved; to compel the commissioners of insolvency to report, and to have a payment directed to all the creditors. We have shown that the review should not be granted. If the administrators paid improper claims they are liable for a devastavit. If the court improperly allowed their accounts, the parties were not without an appropriate remedy ; objections should have been made to such an allowance. If the commissioners of insolvency refuse to report, the court has ample power to compel them to do so; but to entertain this bill, would be to open every step that has been taken in the administration, and to lay the foundation for an entire re-administration of the estate. "W e therefore think the demurrer was properly sustained, and affirm the decree, without prejudice to the rights of the parties in having a report made by the commissioners of insolvency, or in making objections before the auditors, or before the court, to any illegal payment which has been made by the administrators.  