delivered the following opinion :
On the seventh day of April 1840 probate was made by the County Court of Escambia of an instrument of writing purporting to be the last will and testament of George L. Fauntleroy by which he bequeathed to his widow the sum of fifty thousand dollars, a piano, some plate and a set of china, and the will was ordered to be annexed to the letters of administration previously granted toLo Baron there being no executor named in the will.
*293On tlio 25th and 31st of May, of the same year, Le Baron acting in obedience to this will and under the probate of the Court paid to Mrs. Fnuntleroy $50,000 in notes and bonds, and a sum equal to the piano and the other a ’.'tides. '
In October 1841, the next of kin the present complainants applied to ihe County Court for a revocation of the probate, which was refused. They appealed to the Superior Court who revoked and set it aside declaring the will invalid. An appeal was taken to the Court of Appeals who affirmed the judgment of the Superior Court in 1845.
This suit is instituted against the administrator and against Col-quitt who intermarried with Mrs. Fauntlcroy, complaining of this payment as a devastavit and insisting not only upon the disallowance of the sum paid to the widow, but of the forfeiture of all interest by her in the estate of her husband.
In support of this position complainants rely upon the difference assumed in the books between acts of an administrator or executor regarded as voidable and those that are void, contending that the action of Le Baron in the payment to Mrs. Fauntleroy was void.
“ Whether the acts of an administrator or executor whose probate or letters are revoked, are valid or not, depends it is said upon the character of the grant. The distinction is between grants that are void and such as are voidable. If the grant be of the former description the mesne acts of the executor or administrator done between the grant and its revocation shall be of no validity.” 1 Will, on Executors, 400. Toller, 120-8.
“ But if the administration be voidable only, all lawful acts of ' the first administrator shall be valid.” 1 Will., 402. Toller, 129.
“ It may be laid down as a general rule that where the grant is in derogation of ihe right of the executor it is void, but where the administration is granted by the proper jurisdiction and is only in derogation of the next of kin or residuary legatee it is merely voidable.” 3 Bacon Ab., 50. 1 Will., 403-4.
Toller says “ in all such instances the administration is a mero nullity. The executors interest, the ordinary is incapable of divesting.” Toller 120.
It seems according to this that if the grant be in derogation of the interest of the next of kin this does not make the action of the administrator void. Let us enquire as to the interest of the executor which is attended with such important consequences.
*2941st., He had a right to retain for a debt due to him in preference to all other creditors in an equal degree. Toller, 295.
2d. If indebted to his testator his appointment and acceptance of the office shall operate as a release and extinguishment of the debt. Toller, 347.
3d. After payment of funeral expenses, testamentary charges, debts, and legacies, if there be a surplus it shall vest in him beneficially. 2 Will., 898. Toller, 351.
This was the law in former times but by our statute this extin-guishment is expressly done away, so is the right of retainer by the same act providing for a pro rata settlement of all demands which may be rendered in according to law, whilst there is no instance of a claim to the surplus with us. Duval, 188. Thus clearly placing an executor on the same footing of an administrator, making him alike with the administrator an agent or officer merely for the settlement of the estate with no further interest than that of commissions and fees.
It will be thus perceived why a grant in derogation of the right of the executor was so highly esteemed in the early decisions, yet when the cases supporting this doctrine, to wit, Parten and Barsdens, case 1 Mod., 213—Dr. Henslow’s case, 9 Co., 37, B—Abram vs. Cunningham, 2 Lev., 182—Wankford vs. Wankford, Salk., 307—Graysbrook vs. Fox, Plow., 275, were cited before Lord Redesdale in Doyle vs. Blake, he said that “ some of these old cases coulcf scarcely be supported on principle, they were decided whilst a great jealousy of the Ecclesiastical Court prevailed. That the meaning of the modern determinations was that an administration granted after an executor having acted in pais might be repealed by an application to the Ecclesiastical Court, not that it was a mere nullity unless as a protection to the executor. That it was true an executor having acted could not discharge himself from liability by such an administration being granted to another, but that a debtor to the fund could not in answer to a suit by such administrator set up the act in pais of the executor against his renunciation, in order to delay or prevent a recovery by the administrator. That the administration was void only as a protection to the executor, but in no other sense.” The case before the Court was an illustration of these remarks.— Blake and Alley were appointed executors and after performing some acts which the chancellor considered as amounting to an action by them in that character renounced in favor of a third party *295to whom administration of the will was committed, he becoming insolvent, they were held liable for his administration as if he had been their agent. 2 Sch. and Lef., 246.
Williams on Executors adopts these remarks, and adds, “ so if the executor has acted, and the ordinary not knowing it, commits administration to another, though the administration may be revoked, and the executor compelled to prove the will, yet the grant of administration, with the will annexed, until so revoked is valid.” 1 Williams on Executors, 162, and notes.
This view is sustained by the case of Allen vs. Dundas, which Was to recover from a debtor a debt which he had paid to an executor, under probate of a forged will afterwards revoked. The position taken was as in this case, that the probate was only evidence of right ,• that the executor derives his authority from the will, and not from the probate, and that there was no payment. The Court, however, said: “ Here the defendant acted under the authority of a Court of law. Every person is bound to pay deference to a judicial act of a Court having competent jurisdiction. Here the spiritual Court had jurisdiction over the subject-matter, and every person was bound to give credit to the probate till it was revoked.” Bul-ler, Justice, said, “ I am most clearly of opinion that it is a judicial act, and that the probate is conclusive till it be repealed, and no Court of common law can admit evidence to impeach it.” 3 T. R., 129.
So also in the case of Digby & Hollis vs. Wray, B. R., 25 & 26, Car. 2, the plaintiff as executor had judgment against the defendant, and then there was a suit in the spiritual court to repeal the letters, and the defendant prayed a stay of execution till the matter was tried in the spiritual Court — the Court denied it, for the reason thai if a debtor pay money on a judgment and execution to one who is executor de facto, having a probate under seal of a prerogative Court, he shall never be forced to pay it again. 3 Bac. Ab., 51.
To the same effect are decisions of the Supreme Court of South Carolina. In Benson, administrator, vs. Price & Byers, the Court say, when an administration which has been granted is properly revoked, the latter administrator may sue the former for money had and received, or in trover for any goods remaining in his possession, by him converted, or not duly administered. Any other doctrine would be fraught with the most monstrous inconvenience. 2 N & McC.. 577.
*296In Foster vs. Brown, administration had been obtained by a fraudulent suppression of the will, in which the executor as well as the administrator concurred — it was held that all acts done in a due and legal course of administration are valid and binding on all interested, although it be afterwards revolted, nor can the manner of obtaining the administration, whether fairly or fraudulently, yary the question. 1 Bailey, 221.
In Price vs. Mesbit, allusion was made to these authorities, and their application to the case, which was that of a will set up after grant of previous administration enforced. 1 Hill, 461.
So also in Pennsylvania, an opinion was once entertained that payments made to one who had obtained probate of a will which was afterwards repealed were void, and in support of it, 1 Roll. Abr. & Con. Rep., 152, were cited, but those cases have been overruled. The granting probate is a judicial act, and while it remains in force cannot be contradicted. Appeal of Peebles, 15 Sergeant and Rawle, 89.
But there is another consideration showing the entire inapplicability of the rule to the present case, even conceding it to be in operation, when derogatory to the rights of an executor. There was no executor by this will possessed of rights to be affected by the action of Le Baron. He was himself filling the office of executor, having been appointed administrator, with the will annexed, and continued administrator after revocation of the probate.
It is contended that the acts of paying and receiving debts by an executor or administrator, acting under a grant subsequently revoked, differ from the payment of a legacy in this, that the former relate to rights pre-existing before the grant — whilst the latter, resting upon a void will, derives its sole authority from the probate. The propriety of the distinction is not perceived. Indeed, to allow it would be to assert that the probate is a judicial act, available to a legatee or creditor of the estate against the officer, but impotent for his protection. This would be to declare a part of his duty as obligatory, and hold him discharged from the remainder. We cannot, however, draw such a distinction. All the duties of the executor or administrator, resulting from the probate of the will, or from the letters of administration, with the will annexed are alike imperative and obligatory. “ An executor is he to whom another man commits, by will, the execution of that, his last will and testament, and the duty of an administrator with the will annexed, is very little different from *297that of an executor.” 2 Black., 503. “ The executor is hound to perform a will.” Ib., 507.
“ All administrators, with the will annexed, shall make oath or affirmation before the Court or Judge that they will well and truly perform, the last will and testament of the testator, and pay his just and lawful debts, &c.” Duval’s Com. 170.
“ A probate is conclusive both in Courts of law and equity, -as to the appointment of the executor, and the validity and contents of a will so far as it extends to personal property.” 1 Williams, 368. Toller, 76.
“ The probate is conclusive as to every part of the will in respect of which it has been granted.” Ibid, 369. 4 Rand., 538. 2 Ibid, 194.
The will being established by competent judicial action, and this administrator having sworn to perform it, what was his course ?— Obviously to pay debts first, if there are none, then to pay legacies, and distribute the residuum. If the assets were in bonds and notes, they should have been collected as early as possible, and paid ov.er; but, if the legate&preferred taking the burthen of collection, we see no objection, but on the contrary very great propriety in the executor permitting it.
It was clearly a matter of duty on the part of this administrator to pay legacies under the will as much as to receive debts, and if there be a discharge in the one case, we are at a loss why it should not operate in the other. In the case under consideration there was an express mandate of the Court to pay this legacy — an adjudication upon the very point; the very object of the probate, its almost entire object was to procure its payment, and the officer was bound as well by his office as by the solemn obligation of his oath to pay it. To refuse payment would have been alike inconsistent with both of these. To enforce a performance of duty by such injunction, and then subject the officer to peril of his fortune, if through a diverse action of the parties interested, or a change of opinion as to the law by the Courts whose agent he was, would be in our opinion the height of injustice. In the case of the debtor protected as we have seen by the probate, as a judicial act there was no mandate, but mere obligation to pay. If the comparative loss is to be regarded, distribu-tees may be as much affected by improper and illegal receipts, and payments by an executor or administrator, as by the improper payment of a legacy. The remarks of the Court in Allen vs. Dun-*298das, are so appropriate as to deserve a more special reference on this branch of the subject. Ashurst, J., said “1 am of opinion that the plaintiff has no right to call on the defendant to pay this money a second time, which was paid to a person who had at that lime a legal authority to receive it. It is admitted that if he had made this payment under the coercion of a suit in a Court of law, he would have been protected against any other demand for it, but I think that makes no difference. For as the party to whom the payment was m^de had such authority as could not be questioned at the time, and such as a Court of law would have been bound to enforce, the defendant was not obliged to wait for a suit, when he knew that no de-fence could be made to it.” 3 T. R., 129.
If there were yet doubts, we think there is express authority in support of the view we have taken. In Hele vs. Stowel, the husband devised his lands to his wife during the minority of his son, with' power to make leases to pay debts, &e., and dies &c., the wife enters and takes the profits, and then marries a second husband, and he lives some years and takes the profits and dies, and the wife continues to take the profits, &c. The son attains his age, and proves a revocation of the will, and prays an account. The account was ordered. She was to answer as to what her husband took as in a devastavit — the wife having no notice of the revocation had jjaid legacies charged on the lands by will. Ordered that she be allowed those. Cases in Chancery, 126, quoted 8 Bac. Ab., 50, n. 3. 1 Lomax on Ex., 190. Inaccurately stated in Williams on Ex., p. 406.
We do not percieve that there is any thing in the position that Le B<iron was not compelable to pay at the time he did or that the statute allowed him to take a bond to refund. It would not have altered the legal bearing of the act, if payment had been made after the six months fixed by the statute, for the movement against the will took place upwards of a year after the grant. This time is for the convenience of the Executor to ascertain the debts of the testator and the amount of the assets so as to make a proper distribution. 1 Will. 855. Bonds seem to have been required, by the ancient practice in Chancery, of a legatee to refund if debts should appear, but it is now out of use. It was for the protection and benefit of the Administrator which ho might waive as he might the payment before six months. 1 Story's Equity, 605.
We have not noticed iho obvious distinction between cases coin, menoed by citation lieibo- die mdm.uyto .’evoke a probate and th(«-' *299by appeal from his decision depending before a superior judicature for the very obvious reason that the payment was made before either appeal or citation.
We have by no means overlooked the cases in which a legatee as well as an executor have been held liable for payments illegally made to or received by them. Such are abundant in the books but they are cases of fraud in which the wrong doer whoever he may be is converted into a trustee. 4 T. R. 625. 1 Atk. 463. 1 Will. 609-370-1-2.
But there is no pretext tor anything of the kind as to this payment either on the part of Mrs. Fauntleroy or Le Baron. Indeed the probate of the will was made on the affidavit of two of those who are now complainants in the bill, and another fact is to be remarked that there was no movement to disturb it until after the death of Mrs. Fauntleroy. But the liability is asserted in the bill on account of a devastavit charged to have been committed by Le Baron. Lot us see whether this view of the subject is sustainable. “ De-vastavit is defined to be a mismanagement of the estate and effects of the deceased in squandering and mis-applying the assets contrary to the duty imposed on them for which executors and administrators shall be responsible out of their own pockets as far as they had or might have had assetts of the deceased.” Bac. Ab., Ex. L., 1. Will. Ex., 1105. Toller, 424.
It is under this head Williams says “ An executor is personally liable in Equity for all breaches of the ordinary trusts which in Courts of Equity are considered to arise from his office. And it may here be observed that where personal property is bequeathed to executors as trustees, the circumstance of taking probate of the will is in itself an acceptance of the particular trusts; therefore when the will contains express directions what the executor is to do, an executor who proves the will must do all which he is directed to do as executor &c. Will., 1104. Meeklow vs. Fuller, Jacob. 198.
Now it will hardly be contended that the administrator Lo Baron could be held liable for not obeying the will by refusal to pay this money and again liable for paying it. Wo are then of opinion that in equity and justice as well as by the principles of law Le Baron should not be held liable for the payment of this legacy to those complainants.
The question yet remains as to the responsibility of Colquitt.— In reference to this we have no hesitancy in saying that if the pay *300ment made to Mrs. Fauntleroy could not bo supported under the will of her husband, that it should and ought to be so far as her distributive share as widow extended. If a mistake was committed by her in common with others interested in the estate, as well as by the tribunal whose office it was to adjudicate as to the legal effect of the paper set up as the testament of her husband, it certainly should not operate to produce a forfeiture of her interests as a distributee.
A salutary rule of a Court of Equity is to regard that as done which ought to have been done, and rather than declare a forfeiture of the widow’s right, Equity would regard the payment as made to her originally for her distributive share and not as a legacy. This share does not reach the amount paid her by Le Baron and the en-quiry is as to the liability of Colquitt to make the deficiency good. Whether such a liability may be made out against him is not the question before us. We have to decide whether the complainants have by their pleadings and evidence, made a case entitling them to relief in a Court of Equity. The allegation as to his liability is to this effect, “ your orators further charge that said Le Baron has committed a devastavit upon the estate of his said intestate and wasted the same by paying a large portion thereof, to wit the sum of fifty thousand dollars to the aforesaid Walter Colquitt under pre-tence of a legacy having been left to the said Aphia in a pretended will of said deceased, which pretended will has long since been pronounced by a Court of competent jurisdiction, to be invalid &c., and that said Le Baron and Colquitt have combined and confederated together most unjustly to detain from your orators the said sum of fifty thousand dollars so illegally paid by said Le Baron to Colquitt, and they further shew that a portion of the said estate of said Fauntleroy so illegally paid to said Colquitt consists of bonds due by sundry persons, to wit, (here a blank) to the said estate and that many are now in suit by said Colquitt as assignee of said' Le Baron and is thereby reducing the same to his possession.” Here there is the simple allegation of devastavit against Le Baron for paying to Colquitt, though both are charged with combining to detain the #50,000. Now this charge of payment to Colquitt is expressly negatived by the agreed case shewing that on the 25th and 81st of May, 1840, this sum was paid to Mrs. Fauntleroy before her marriage. So that if a decree were rendered in favor of complainants against Colquitt it would be on grounds directly opposed to and falsifying the statements in their bill. It would be without allegation *301and against proof. We hold itto bo very cloar too that a mere charge of confederacy against a party is not the foundation for the jurisdiction of a Court of Equity. Story’s Eq. pl., 25-27.
The whole case against Colquitt is clearly predicated on the idea of Le Baron’s having committed a devastavit and that failing, the plaintiffs, case would seem to fail also as to him. This case in dis- ' tinct and separate in its character from the distribution and may be better adjudicated by itself than in connexion with it. The complainants had permission too of which they did not avail themselves to amend their bill, and cannot complain now of the dismission for want of it.
We are therefore of opinion that the bill should be dismissed as to Colquitt, without prejudice to the institution of another suit against him, if the parties think they can maintain one for the difference between the amount of the legacy and the distributive share of Mrs. Colquitt. In the mean time the present suit will proceed for distribution against Le Baron as to the residue of the estate crediting to him the sum paid on account of the legacy. This view of the subject disposes of the exceptions to the masters report.
This same case was before the Court of Appeals of the late Territory at their January Term, 1845, and they holding different sentiments and opinions as to the law of the case, reversed the decree of the Superior Court wnich had dismissed the suit as to Colquitt, and declaring that Le Baron had committed a devastavit, required them both to answer. This decision, it is contended, is conclusive in this Court as to the rights of the parties having been made by a Court having full jurisdiction of the subject-matter. This question was very fully considered by the Supremo Court of South Carolina in the case of Price’s Executors vs. Nesbit, in whi.ch the Court after reviewing their own decisons and those of New York, held that the appeal from a final decree would, if pursued, open all prior decrees whether of the Chancellor or Court of Appeals. ‘ So long as a decree operates,’ it was said, ‘merely as authority or as the reasoning of the Court to prove the party’s right, in whose favor it is pronounced it may be reviewed and reversed whenever it comes up properly before the Court of Appeals, in any of the subsequent stages of the case.” The opinion of Chief Justice Spencer in the Court of Errors of New York, was quoted with approbation, concurred in, as it was, by the whole Court. “ An appeal from a final decree opens for consideration all prior of interlocutory orders or decrees *302connected with the merits of the final decree.” 17 John., 548.— 1 Hill, 547.
There could scarcely be higher authority than this in support of a legal proposition, yot without holding it decisive, and reserving the point for a more careful consideration, there is in our opinion in the record and in the opinion and mandate of the Court sufficient to shew that it should not conclude the rights of either Le Baron or Colquitt.
There is no where in the record, or amongst the papers, any evidence of an appeal prayed or taken either in the Court below or before the Clerk, nor does notice appear to have been given to the adverse party of the appeal. The mandate of the Court itself states that argument was heard of counsel for complainant, but that “no counsel appeared on behalf of defendants.” It is true the name of an attorney for defendants is marked on the docket of this Court at that time; but at the most this is an equivocal act. In the Circuit Court by statute the name of an attorney operates to prevent a judgment by default in common law cases; but we are not aware that of any law declaring its effect in a case of Chancery or in tho Court of Appeals. Does it amount to notice of an appeal by the other side, and of the pending of the suit in the appellate Court. But again it is insisted by appellants that, that Court had not the facts before it, and therefore its decision could not be conclusive, and we are referred to the opening of the opinion commencing as'follows : “ It is difficult from the very imperfect record before us, to ascertain either what the real questions in the cause are, or what decree ought to be given upon tho record, and were we not aided in some measure by the admissions of complainants’ counsel on the argument and by some references to facts in tho opinion of the Judge in the Court below we should find it still more difficult. Disregard, however, the defects of the record as much as possible we shall endeav- or to express our opinion on the main points or questions upon which the parlies desire a decision as we understand them, from the argument at bar as well as from the record.”
In declaring the plea of Colquitt bad, which the Court did, on grounds that neither the will nor probate were set out in the plea, nor any averment that the $50,000 ¡¡aid to Mrs. Fauntleroy were the same $50,000 charged in the bill to have been paid to Colquitt, and no answer connected with the plea as required by the statute, they say, “ it should be observed, however, that in tho opinion of *303the judge below, a state of facts is set forth which do not appear upon the record, and upon which it would seem that the decision of the Court below was predicated, and which might form a good ground, for the decision of Ihe Court below ; and we are not prepared to say, that if the facts set forth in the opinion of the judge were spread upon the record, and those were the only facts of the case, that the decision might not be entirely correct.” They then direct him to answer fully, and that in so doing he compromits no rights — and if upon the coming in of his answer it clearly appears that he is not properly a party to the suit, the hill may be dismissed.
Even as to Le Baron, they say, “ the Court below in its decision considered that the payment or delivery of the $50,000 of securities by the administrator to Mrs. Fauntleroy, rvas justified by the then existing probate of the pretended will, and in the opinion of that Court this conclusion is arrived at upon a state of facts set forth in the opinion, which no where appear in the record, and upon which that Court came to the conclusion, that although the will was annulled and declared void, and the probate of it revolted, yet that Lc Baron is not bound to refund, &c.
Now, turning to the opinion of the Court below, we find these facts stated as the ground of its opinion. “ It is declared to be the opinion of this Court, that Le Baron did not commit a devastavit in paying over the said legacy to the said Aphia, before a revocation of the probate, or notice thereof, and before suit to invalidate the said will.” Perhaps with the facts now before us, the Court of Appeals might have come to the conclusion we have taken in common with the Judge of the Superior Court.
We are, therefore, of opinion, that, under these circumstances^ the decree of the Court of Appeals should not be held to conclude the defendants in this case, as contended for by complainants. The decree of the Court below will be reversed and sot aside, with directions to dismiss the bill as to Colquitt, and to allow the payment by the administrator of the legacy, and for further proceedings not inconsistent with this opinion.