— That a judgment creditor has the right to pursue the equitable estate of his debtor, in a court of chancery, and have it set apart to the payment of his debt, is a proposition, which, I apprehend, will not now be controverted ; and that the interest of one of several co-distributees in an intestate’s estate, may be thus charged, was settled by this court, in this case, when it was here at a former term. 14 Ala. 719.
But in order to do this, it is indispensably necessary that the Chancellor should proceed to make a final settlement of the administration, and separate the portion of the judgment debtor from the remainder of the estate, before a final decree can be pronounced, condemning such portion to the payment of the demand. To this end, the master should take just such an account of the affairs of the administration , as is required to be taken by the Probate Court, on the final settlement of intestates’ estates; and, when this is done, the Chancellor should direct the estate to be distributed among the parties in interest, in a manner as nearly conformable to that pointed out by the statute, for the government of the Probate Courts, as is practicable, and then direct the sale of so much of the portion sought to be charged by the creditor, as shall be sufficient to satisfy his demand.
Such appears to have been the opinion of the Chancellor at the time the reference was made to the master, in the case under consideration. It was evidently intended by him, that Mrs. Lang, (who was at once the widow and administratrix of Willis Lang, deceased, and the judgment debtor of the complainant,) should make a full settlement of her administration. Accompanying the order of reference, is the opinion of the Chancellor (Crenshaw) upon the rights of the parties in several important particulars, concerning the account *189to be taken before tbe master; and these, so far as they go, should have been regarded by that officer as directions to him, in the discharge of his duties under the order. It having been admitted in the answer of Mrs. Lang that she had used and misapplied the assets of the estate, the Chancellor directed that an account of the sums so wasted should be taken by the master, and charged upon her portion of the estate, when the settlement was made. He declared' that the lien of the -heirs at law of Willis Lang, deceased, on the distributive portion of the widow, arising out of her waste of the assets of the estate while she was administratrix, was prior and paramount to that of the complainant, which never attached until his bill was filed, and that he could stand in no better position in relation to the distributive portion of the widow, than that which she occupied herself. He further - declared that the accounts exhibited with the answer of Mrs. Lang, were responsive to the bill, and being called for by it, they should be received as proof, unless they were surcharged and falsified by other proof before the master. We repeat, that these rulings of the court, accompanying the order of reference, cannot be regarded in any other light than express directions to the master, to guide him in taking the account. He was not at liberty to disregard, or act in opposition to them, in stating the account under the order of reference, especially after they had been passed upon by this court, and their correctness sanctioned. Brown v. Lang et al., 14 Ala. R. 719.
We will now proceed to consider the exceptions taken before the master, and certified by him, with his report, as having been taken by the defendants.
The first three exceptions do not appear to be founded on anything contained in the record, in the report of the master, or any of the exhibits accompanying that report, and were rightly disallowed.
The fourth exception is well taken. Under the order of the Chancellor, with the directions preceding it, the master should have made out an account current between the admin-istratrix and the estate, and in order to do so correctly, it was necessary for him to have ascertained the amount of the debts of Willis Lang, which had been paid by the administratrix, *190up to the time the account was taken, before him, that this sum might be carried to her credit. The failure to do this, was an error, for which the whole report should have been • set aside.
The fifth exception is equally well founded, and it was palpable error to disallow it.
The sixth, seventh and eighth exceptions arise out of the master’s disregard of the directions of the Chancellor, in reference to the matters involved in them respectively. An examination of the report shows, that it is justly obnoxious to each, and every one of them, and that it was error to disallow them.
Had no exceptions whatsoever been taken to the report of the master, the Chancellor should not have permitted it to stand, for the reasons, first, that the master disregarded the instructions and directions of the Chancellor; and, secondly, because the report does not furnish the facts necessary to enable the court to proceed to a final decree on the merits of the case. A report which is obnoxious to either of these objections, does not require exceptions to set it aside.
It may be remarked with respect to the first of these objections, in the present case, that the report, on its face, shows an utter disregard of the instructions of the Chancellor. These directed the master to ascertain and report the amount of waste committed by Mrs. Lang, arising from a misapplication of the assets of the estate in her hands to be administered. Nothing of this kind appears to be done, although the master’s attention on the reference, was distinctly called to it by the defendant, as appears by the exceptions certified with his report. He refuses also to consider the exhibits attached to the answers of the defendants, which show the property, real and personal, belonging to the estate of Willis Lang, deceased, which came to the hands of the administratrix, with its kind and value, as well as an account of the rents and profits of the estate to the time the answers were filed. The Chancellor had directed him to regard these as evidence, unless they were surcharged and falsified, yet he. takes it upon himself to say, that he did not regard these portions of the answers as responsive to the bill. It is not allowable for the master to set up his own opinion, on a matter connected with *191the reference made to him, in opposition to that of the Chancellor. His duty is to obey, and if it is desired that the Chancellor should review his directions, the party supposing himself to 'be aggrieved by this obedience of the master, may take exceptions, and by this means bring the point again to the attention of the Chancellor. If, on the argument of these exceptions, it should be made to appear, that the justice of the case cannot be got at, without an alteration of the decree, in conformity with which the report is made, he will direct the report to stand over, and order that portion of the former decree containing the erroneous directions, to be reheard. It is not competent for the court, upon exceptions, to make an order which is not consistent with the original decree; from the time of the pronunciation of that decree, all the subsequent proceedings should be consistent with it. Daniel’s Chan. Prac. & Plead. 1499.
In this case, the master has undertaken to do, what is not allowed to the Chancellor, and that, too, after the action of the Chancery Court had been reviewed and affirmed by this court. He has reported in direct opposition to the original decree, and an order confirming his report is so great a departure from that decree, and so clear an exercise of unauthorized power on the part of the Chancellor, that it may be reviewed in this court, without exceptions taken in the court below.
As to the deficiency of the report, in respect to the facts necessary to enable the Chancellor- to proceed to a final decree on the merits of the case, it may be said, that with the exception of the sum due the complainant on his judgment, it appears to be total. Neither the report, nor the exhibits attached to it, show either the condition of the estate, the property, real and personal, belonging to it, subject to distribution, or the shares or portions of the distributees. No account current is made out in that form which would warrant the Chancellor in proceeding to a final settlement of its affairs, and a decree of distribution. A report so directly repugnant to the order of reference under which it purports to have been made, and so deficient in those facts upon which the final action of the court could alone be based, need not be excepted to, in order to set it aside. In such cases, it is *192the duty of tbe Chancellor, either to direct the master to review his report, in order to conform it to the decree under which it is made, or to disregard it in toto, and order him to report under the original decree. 2 Daniel Chan. Prac. & Plead. 1501; Turner v. Turner, 1 Dick. 313, 1 Swanst. 156.
Por another reason, the decree in this case must be reversed. By its terms, the Chancellor directs the “ defendants ” generally, thereby including the children of Willis Lang, deceased, to pay into court the sum reported by the master to be due on the complainant’s judgment against Mrs. Lang, within thirty days, and in default of such payment, be directs an execution therefor against said “ defendants,” in the usual form. The bill seeks no moneyed decree against the heirs at law of Willis Lang, deceased, nor does it, in any of its allegations, lay a predicate which will justify such a decree; neither does the complainant pretend to have any demand against them. It is true, he alleges that Mrs. Lang has made to them a voluntary deed for her portion of the estate, which he insists is fraudulent as to him; but he seeks to set this deed aside altogether, and does not seek to charge the property conveyed by it in the hands of the grantees, or to have them declared trustees of her interest, for his benefit. His whole object seems to be, to disencumber Mrs. Lang’s portion, and have it set apart for the satisfaction of his judgment against her. The children of Willis Lang, deceased, are made parties, for the purpose of effecting a final settlement of the estate, in which they had a joint interest with their mother; and because they are the grantees in a deed, made by Mrs. Lang, which is alleged to be fraudulent as to the complainant. Por these purposes, they were not only proper, but necessary parties to the bill, and the only relief sought against them, is, the prayer that the deed made to them by their mother, be set aside for fraud. A decree, which, like the present, grants more extensive relief than is prayed for by the bill, or justified by its allegations, and the proof taken under them, is erroneous. Again, the decree, in its present form, is inoperative. It is shown by the proof, that neither Mrs. Lang nor her children have any property, apart from their interest in the estate of Willis Lang, deceased; this is not subject to levy and sale for the debts of any, or all of them, under execution *193on a moneyed, decree, so long as the estate remains unsettled in the hands of the administratrix; such an execution is as powerless to charge the property, as the one which issued on the judgment at law. To render the decree operative, it was indispensable to separate Mrs. Lang’s portion from the portions of her children; and to do this, a final settlement of the administration, and a distribution of the personalty were both necessary; neither of which has been effected here.
The deed made by Mrs. Lang to 'her children, purporting to convey all her interest in her husband’s estate, is, on its face, made upon consideration of natural love and affection, and none other is established by proof. It is voluntary, and being made at a time when she was indebted to the complainant, it is, therefore, void as to him, and was rightly set aside. This, however, cannot affect the right of the children to have so much of her portion of the estate appropriated to their own use, as will be sufficient to make good any waste, or misapplication of assets, which has occurred during her administration, and this in preference to the claim of the complainant. She could not be permitted to receive any part of the estate in her own right, while she was a debtor to the trust fund, for moneys appropriated from that fund to her own use; neither can the complainant, who occupies her position to the extent of his demand against her, be allowed to do so.
It is proper here to remark, that in the second head-note prefixed to the case of Brown v. Lang, 14 Ala. 719, in which it is said, that this court “held, that in the absence of fraud, the co-distributees, had, under the deed, a prior lien on the share of the administratrix, as distributee, to the lien of the creditor,” the reporter was betrayed into a misapprehension of what was really decided by the court. No question could properly have arisen in that case, in this court, on the validity or invalidity of the deed, or its legal effect, for the obvious reason, that no opinion had been expressed on this branch of the case in the court below, but it was distinctly reserved by the Chancellor until the coming in of the master’s report, and consequently was not here for revision. In the opinion of the court, it is said, “We may then place out of view the deed, without stopping to inquire whether it can be supported by proof of valuable consideration, and rest the decree of *194the Obancellor upon tbe paramount lien of the co-distribu-utees of the intestate’s estate, upon the share of Mrs. Lang.” This explanation I esteem due to the court, to prevent the inference which might otherwise be drawn, of a conflict between our decision then and now in reference to the deed from Mrs. Lang to her children. So far from a conflict, the harmony is complete, since both decisions pro-ceeed upon precisely the same principles in setting up the prior equity of the distributees.
The master’s report must be set aside, and the decree reversed at the cost of defendant in error. The proceedings, up to the order of reference, are regular and without error; the cause must therefore be remanded, with directions that it be taken up at that point, and proceeded in to a final decree, on the principles laid down in this opinion, and the opinion of the Chancellor accompanying the order of reference.