In this case the appellee, filed his complaint against Erancis M. Ivy, as executor of Thomas Ivy, B. W. Green, administrator de bonis non of W. W. Andrews, and others, in the circuit court of Miller county, in chancery, upon which original summonses were issued for the defendants, on the 11th day of November, 1880. In the complaint the appellee describes himself “ as administrator, with the will annexed of estate of Thomas Ivy, deceased, late of' the county of Bowie and state of. Texas, duly appointed and qualified by the honorable the probate court in and for the county of Miller and state of Arkansas.” As no letters are attached, nor date of them given, we are not advised, by the transcript, as to the date, but infer from other matters apparent in the record, that the appointment had been made recently before the bringing of the suit. From the original and amended complaints and exhibits, upon which the case was decided below, on demurrer, it appears that Thomas Ivy, late of the county of Bowie and state of Texas, being seized of a large estate, both real and personal, situated in the states of Arkansas and Texas, on the 9th of December, 1857, made his last will, in which are the following provisions which are pertinent to this case, to-wit:
“Firstly — I desire all my just debts and liabilities to be paid by my executor hereinafter to be named.
“ Secondly — I devise and bequeath unto my brother, Marion Francis Ivy, all the estate, right, title and interest in possession, reversion or remainder, which I, at this time, have, or shall have, of, in and to lands, tenements, hereditaments or annuities, or reuts charged upon, or issuing out of them, whether situated in this the said county and state, Bowie county, Texas, or otherwise. And I further bequeath and devise unto my brother, all the right, title and interest, in possession, reversion or remainder, which I have at this time, or shall have, in or to any slaves or personal property whatever, whether the same is,, or may be in this, the said county and state, or elsewhere; most of said estate consisting of lands and slaves and other personal property, situated and being in said county of Bowie, and in the county of Lafayette, in the state of Arkansas. I do bequeath unto my said brother, Marion Francis Ivy, the proceeds of all my choses in action, and my interest in all claims, of every description, in which I am or may be interested; provided that none of the above legacies and bequests shall interfere with or annul the legacies hereinafter to be mentioned and set forth in this my last will and testament.
“ Thirdly — I bequeath and devise unto my nephew, Thomas II. Wallace, $5000, which I desire to be paid to' him, either in money or property, by my said brother, out of my said estate, when he, the said Thomas H. Wallace, arrives at the age of twenty-one years.
“Fourthly — I hereby nominate and appoint my said brother, Marion Francis Ivy, the executor of this my last will and testament, and desire him to carry out the foregoing provisions, and to attend to all matters of my estate as he may deem best.”
This will is duly attested by two witnesses, so as to make it a good will concerning real estate in Arkansas. Francis M. Ivy, called Marion Francis, in this will, proved this will, it is alleged, before the county court of Bowie county, Texas, a court having jurisdiction, though no record evidence of the probate is exhibited, and took out letters testamentary on the 24th of February, 1862, and fully administered the estate in said county in Texas, the domicile of testator. There is no allegation or evidence that the will and probatehave ever been admitted to record in Arkansas, .as prescribed by the statute regulating wills. Mansfield’s Digest, secs. 6513, 6531, 6582, 653Jp.
The testator departed this life on or about the 15th day ■of January, 1862, shortly before the probate of his will. That the executor has never made his final settlement with the Texas court; that his administration was still open, awaiting the result of an ancillary administration to be had in the state of Arkansas, where the largest and most valuable portion of the estate of testator, realty, was •and is situated, then in Lafayette, now in Miller county, in said state; and remained wholly and entirely unadministered by any court of competent jurisdiction in Arkansas. That testator, and his brother, Francis M., at the time of testator’s death, were partners in the business of •farming in the county of Lafayette, now in Miller. That the slaves were emancipated. That certain lands belonged to the testator in his own right, and he had an undivided half interest in others with Francis M. That William W. Andrews, on the 31st of October, 1865, filed his complaint, and had a writ of attachment issued against Francis M. Ivy, from the circuit court of Lafayette county, which was, on the 4th of November, 1865, levied upon portions of this land. On the 22d of November, 1867, Andrews recovered judgment against Francis 'M. Ivy, and on the 8th of November, 1871, the judgment was revived; and on the 15th day of October, 1875, a ven. ex. was issued on this judgment, directed to the sherifi of Miller county ; and on the 9th day of December the lands were sold in solido, and not in legal subdivisions, and Martha J. Andrews, as the administratrix of W. W. Andrews, became the purchaser. Before this sale, Francis M. Ivy, on the 1st day of May, 1875, mortgaged the lands, which were devised to him by Thomas Ivy, to Wm. B. Crabtree, reserving in the mortgage, the right to 160 acres, as a homestead. • That Crabtree well knew the condition of the lands, and the interest of the estate of Thomas Ivy, at the time the mortgage was executed. That the notes secured by the mortgage were assigned, by Crab-tree, to K. Mandel & Co., of Jefferson, Texas. That suit was brought, in the Miller circuit court, March term, 1879, to foreclose this mortgage, by Mandel & Co., against E. M. Ivy, Henry Moore, as assignee in bankruptcy of Eraucis M. Ivy, Crabtree, James Kelly and Mrs. Andrews, and B. W. Green, administrator, cle bonis non of W. W. Andrews. That a decree was rendered and an order made to sell land to satisfy it. That under this decree the lands which had belonged to Thomas Ivy, as well as those in which he had an undivided interest, were sold on the 7th of June, 1879, and were bought by William R. Kelly, who appears to have bought in trust for Mandel & Co.,, and B. W. Green, as administrator de bonis non, of Andrews’ estate. That on the 1st of December, 1875, Francis M. Ivy, on his own petition, was declared a bankrupt,, by the district court of the United States for the eastern district of Arkansas. That he scheduled these lands of Thomas Ivy as his, as residuary devisee subject to the payment of testator’s debts and the legacy to Wallace., and subject to his own mortgage to Crabtree. That Henry Moore was appointed assignee in bankruptcy of the estate of Francis M. Ivy, the bankrupt, who sold all the interest of the bankrupt in the lands embraced in the schedule, and James Kelly purchased them. That Kelly,, afterwards died, and John A. Roberts was appointed administrator, and as such, it was charged, was setting up-some claim to the land. That Kelly, in his lifetime, did not pay the assignee the purchase money, nor has his administrator, since. Kelly’s heirs are not named or made parties.
That Thomas H. Wallace, to whom testator bequeathed the sum of $5,000, departed this life on or about the 1st day of April, 1862, aged about twenty-two years. His heirs are named, but as this legacy is personalty, and a chose in action, the heirs, as such, cannot recover it. There has never been any administration of Wallace’s estate. The complaint further states, that the legacy to Wallace was not paid to him in his lifetime, nor has it been paid to “ his heirs ” since. It is stated, in general terms, in the complaint, that there are unpaid claims against the estate of the testator; that the estate, real and personal, in Texas has been exhausted and applied to the payment of partnership debts, and individual debts of Thomas Ivy; and all the personal property in Arkansas has been sold and so applied, and nothing is left to pay said legacy and indebtedness, except the Arkansas lands. The prayer of the complaint is, that all of the sales, in so far as they attempted to dispose of any lands belonging to the estate of Thomas Ivy, deceased, be declared void, set aside and held for naught; that William R. Nelly, now acting as trustee for N. Mandel & Co., and for B. W. Green, as administrator, etc., or some other suitable pers >n, be appointed receiver, with authority to take charge of said lands belonging to said estate during the pendency of this suit, to rent out the lands, collect the rents and hold the same, with the money he may have on hand, as such trustee, subject to the order of the court, and to do and perform all orders and duties that may be required of him by the court; that the defendant, Francis M. Ivy, as surviving partner of Thomas Ivy, may be required to discover and set forth a full, true and particular account of all and singular the partnership property and every part thereof which has been possessed by him, or come into his hands, or to the hands of any other person or persons by his or■der, or for his use, with the particular nature, quality or qualities, and true value thereof, respectively, and how the same and every part thereof has been applied and disposed of; and that he also be required to set forth an account of the debts due from and to the testator, and what legacies, if any, have been paid, and to whom, and whether •any such debts are now outstanding, and why; that the ■said B. W. Green, as administrator, etc., and John A. Roberts, as administrator, etc., may be required by order of this court to render a true, full and particular account of ■all and every sum or sums of money which has or have been received by them, or either of them, or any other person by their or either of their orders, for and in respect of the rents and profits of said estate, or any part thereof; and that plaintiff have judgment therefor, and for such other and further relief as to justice and equity may appertain.
The plaintiff filed an- amendment to his complaint, making the heirs of W. W. Andrews parties, and stating that they claimed to own the lands under these several ■sales. And in response to a motion to make the complaint more specific, as to debts due from Thomas Ivy, in this •amendment, it is stated “that the plaintiff has been informed by the executor of the last will and testament of Thomas Ivy, deceased, in and subject to the jurisdiction of the laws of the state of Texas, there are subsisting and unliquidated debts and liabilities against the estate of Thomas Ivy, deceased, but to what extent, to what amount, ■and the nature and class of‘the same, plaintiff is not sufficiently informed with certainty.” This amendment sets out with useless particularity the names of the heirs of Wallace. As they could not sue for this legacy, and it must be collected, if at all, through an administrator on Wallace’s •estate, this was unnecessary. It sets out more minutely the manner of administering the estate in Texas, and exhibits the executor’s reports to the county court of Bowie county, and shows specifically the full administration of the assets there, which makes it more remarkable that the debts of the estate, if probated there, could not have been specified better than upon general information. The amendment further states, that the sales of the lands set out in the original complaint were made for the personal and individual debts of Francis M. Ivy. That these Arkansas lands are the only assets of the estate of Thomas Ivy remaining unadministered, out of which to pay Wallace’s legacy, and that the administrator and heirs of W. W. Andrews held possession of these lands under and by virtue ■of the sales set forth in the original complaint.
The circuit court of Miller county overruled a demurrer of defendants to the complaint and amendment, and after finding the facts, decreed that all the several sales of the lands be annulled, set aside and held for naught, and for recovery and possession of the land. It was further decreed that the lands were assets in the hands of Byrne, the administrator, for payment of debts and lawful demands of said estate, and that he proceed with said administration to a final settlement thereof, under the orders of the probate court of Miller county, and that he recover costs.
1. Ancil lary Ad MINISTRA tor: His duty. This plaintiff was an ancillary administrator in Arkansas. The office and duty of such administrator is to protect the rights of domestic creditors and pay their claims, to prevent the necessity of their having to follow the estate into a foreign jurisdiction, and to pay over any surplus in his hands, after paying home creditors, to the administrator of the domicile. Shegog v. Perkins et al., 31 Ark., 539; Williamson v. Furbush, 31 Ark., 539; Gibson, ad., v. Dowell, 42 Ark., 164; Clark v. Holt, 16 Ark., 257; Duval v. Marshall, 30 ib., 231.
This suit seems to reverse the usual order. It is an effort to transfer an unfinished administration to Arkansas for completion, and to call the administrator of the domicile to account as surviving partner of the testator, when it is well settled that an administrator cle bonis non cannot call the former administrator to account for money in his hands, and he is responsible for that alone’ to the creditors, distributees and legatees for account and upon his bond. Williams v. Cubage, 36 Ark., 307; Finn v. Hempstead, 24 Ark., 117; Oliver v. Rottaken, 34 Ark., 144.
A surviving partner when administrator, or executor, it would seem, must settle with the court to whose jurisdiction he belongs, unless some peculiar circumstances existed, as where there are domestic creditors, and the assets under the control of the surviving partner were within the jurisdiction of the court which' granted the ancillary administration and were liable to be wasted or to misapplication by the surviving partner; then, it would seem that an ancillary administrator might call upon equity for a receiver or invoke the ordinary remedies which administrators may ask, in a proper case, against a surviving partner who was wasting or misapplying partnership assets. But no such case appears here. It is not pretended that Francis M. Ivy has any unconverted partnership assets. This feature of the case, calling for an account, seems to have been abandoned at the hearing, and is expressly abandoned here, by plaintiff in his brief.
As to debts in Texas, we shall treat the general allegation just like a general allegation of fraud, without specifications. It will not be presumed that any probate court would grant an order to sell real estate and divest the heir or devisee, or those claiming under them, of title, on the statement that the administrator was “informed that there were unpaid debts.”■ But this court will not collaterally inquire into, or question the power and jurisdiction of the probate court to grant administration. That court might err in improperly granting administration, but we could only review it on appeal or writ of error. But it might be a question for us to determine now and here, whether collateral aid shall be granted to an unnecessary administration. For in this case the will charges the legacy upon the "land and there seems to be no necessity for an administration on Ivy’s estate to collect Wallace’s legacy, if lapse of time has not barred it. The lands devised to Francis M. Ivy, it seems, went into his hands clothed with an express trust, and when the personal assets are exhausted, it might be subjected, if not before, to the payment of this legacy. West v. Williams, 15 Ark., 682. And it has been held that where lands are devised, charged with the payment of a legacy, that the legatee may proceed against the lands in rem., without waiting for the executor to exhaust the personal assets. Sand v. Champlin, 1 Story Rep., 326. See, also, Wright v. Den, 10 Wheaton, 204; Lewis v. Darling, 16 Howard (U. S.), 1; 2 Binney Rep., 525; 6 ib., 395; Redfield on Wills, chap. 13, sec. 57, par. 7, 8, 9, 10, p. p. 558-9.
It would seem from the drift of authorities that even where the personalty has been exhausted, in payment of debts, leaving a legacy unpaid, for which the realty might have been liable, the legatee has a right of subrogation against the heir, and to subject the realty, or compel contribution in equity. This seems to be a well-established branch of equity jurisdiction. 1 Story Eq. Jur., sec. 565. It is true that it has been held in New York, under its peculiar statutes, that where an executor, who is the devisee of realty, has exhausted the personal estate in paying debts, the legatee of an unpaid legacy, is not, on that account, entitled to a priority over legal liens which other creditors of the executor have acquired upon such realty, by judgment. Wilkins v. Harper, 2 Barber, N. Y., ch. 338. Same case affirmed by court of appeals, 1 N. Y, 586.
The application of this principle in Arkansas may well be doubted where our laws make realty assets in the hands of an administrator, subject to debts, with right of possession, and to rents and profits in the administrator. While it is true t]ie personalty is the primary fundout of which debts are paid,, yet, in some sense, their payment out of the personal estate is in exoneration of the realty, and that would seem, upon ordinary equitable principles, to give to an unpaid legatee a right of subrogation, in this state, even where the legacy was not charged on the realty. That was not, however, a question in the New York case, which involved a mere contention for priority, between the judgment creditor of the devisee, and the legatee whose legacy was not charged on the land devised. In the case of Hall v. Brewer, 40 Ark., 434, a bill was filed by a fourth-class creditor, whose claim had been in litigation during the entire pendency of the administration, and when the creditor recovered judgment, and had his claim classed, the administration had been closed and the land turned over to the heirs and the personal property distributed. This court held that the death of a decedent fixes a lien upon lands for the payment of debts, and they pass to his heirs and devisees charged with such debts, and where a creditor’s debt has been duly probated and not paid, or has come into existence too late to be probated, or after the administration has been closed, he may, in equity subject them in the hands of the heirs or devisees or their alienees with notice, to payment of the debts. The same principal was settled in Wilson v. Harris, 13 Ark. Under the authority of these cases-, and others like them, it would seem that the remedy of the legatee and Texas creditors, if any, was complete in equity without the expensive and tedious process of an Arkansas administration, and in a tribunal fully competent to marshal assets, settle priorities, remove clouds and grant final relief. But in this case, no party entitled to this relief is before the court as plaintiff or defendant. Nothing remains tangible in this case, as a" reason for administering the Arkansas lands, but Wallace’s legacy, as no specific debts are shown. That legacy was allowed to remain uninforced for over eighteen years, before the complaint was filed, and now, at the end of twenty-four years, as far as we are informed, no administrator has ever been appointed on his estate, and yet no one but an administrator could collect or give to Thomas Ivy’s administrator a lawful acquittance for this legacy. Lemore v. Rector, 15 Ark., 436; Pope v. Boyd, 22 Ark., 535; Anthony v. Peay, 18 Ark., 30; Worsham v. Field, ib., 448; Pryor v. Ryburn, 16 Ark., 672; Slocum v. Blackburn, 18 Ark., 319; Atkins v. Guice, 21 ib., 173; Martin v. Tyree, 41 ib., 314.
These questions, which are suggested, and not directly presented, in this case, would properly arise whenever an administrator of Wallace’s estate, or any unpaid creditor of Thomas Ivy, with properly established and authenticated claims from the Texas tribunal, shall present their complaint, in equity, to subject the lands, devised to Francis M. Ivy, to the charge of the unpaid debts and legacy. Then it will be time enough to determine whether Francis M. Ivy, and those claiming under him, hold the lands in trust, subject to debts and legacies, or whether they hold adversely. Also, whether or not they are innocent purchasers, and whether or not the demands are stale, or barred by limitation.
All that it is necessary to decide, and all we do decide, now, is:
First — In advance of the presentation of a copy of the will and probate thereof, duly certified to the probate court of the county in Arkansas where the lands of Thomas Ivy lie, and the order of that court that the will shall be recognized and admitted of record as wills in this state are recorded, as provided in sections 6582-3, Mansfield's Digest. In advance of the establishment in the probate court, granting the ancillary letters, of unpaid debts and legacies, by certified transcripts or otherwise; and after so great lapse of time, it is not to be presumed that any probate court would cloud the title of lands of a citizen of this state by granting an order to sell. Mays v. Rogers, 37 Ark., 155; Stewart v. Smiley, Mans. Op.
Second — Until some reason or necessity is shown more than appears in this record, the plaintiff below is not entitled to bring any possessory action for the lands in advance of an order to sell.
Third — That, while it is true, as contended, that if a plaintiff is entitled to any relief, it should not be denied him because he may have mistaken the tribunal, yet, as the plaintiff does not show that he is entitled to the relief prayed for, the court was not bound to change the whole object and scope of his complaint, in order to grant relief as at law, even if he had been entitled to a judgment for possession.
For these reasons, the decree of the court below is erroneous, the plaintiff below having shown no ground for either equitable or legal relief. The decree is reversed, and a decree will be entered here dismissing the complaint and for costs.
Hon. B. B. Battle did not sit in this case.