By the appeal from the decree of the judge of probate appointing Sabin administrator, his authority as such administrator was suspended, and his proceeding after-wards to take out a citation against the appellant, for em bezzlement, and to promote the same, was irregular, under the Rev. Sts. c. 83, § 43.
It is argued, that this petition may be sustained, on the ground, that the petitioner describes himself as administrator and creditor, and it is sufficient if he is a creditor, within the seventh section of the Rev. Sts. c. 65, which provides for complaint made by any executor, administrator, heir, legatee, creditor or other person interested in the estate of any person deceased, &e.
It is very questionable, whether this is not limited, by necessary implication, to the case of a deceased person, whose estate is under administration, that is, one on which letters testamentary, or letters of administration, have been granted. How else is the jurisdiction of this process, which is in its nature subsidiary and interlocutory, to be determined by the judge of probate, if it is not by the fact, that the estate is in the process of settlement before him ?
Further, to what useful end would it conduce to inquire and ascertain, if any person has property concealed, or withheld, if there be no person qualified and authorized to demand it, or even take it into custody and give a legal acquit*48tance for it, if voluntarily surrendered ? From whom can it be said to be concealed, embezzled or withheld ?
But we do not consider that an answer to these questions is necessary in this case. The respondent alleges, in his petition, that he is “ administrator and” creditor; but the words “administrator and” are material, and cannot be treated as surplusage. It may have been upon this ground alone, that the judge took jurisdiction.
Decree ordering the appellant to answer interrogatories reversed and annulled, and proceedings under it vacated.