The opinion of the Court was delivered by
Willard, C. J.The complaint is in the nature of a bill by the administratrix of a distributee to charge the administrator of the intestate of such distributee for losses to such distributee occasioned by fraudulent misconduct on the part of the administrator in dealing with the assets of the intestate’s estate, and alleges that a decree upon the accounting purporting to be final had been taken ex parte-in the Probate Court without notice to either of the plaintiffs. The administratrix joins with herself as plaintiff Lila Johns, an infant, one of the distributees of the distributee whose estate she administers, she herself being the other distributee of such estate. The infant, Lila, appears by guardian ad litem. The defendants demurred to the complaint for want of equity and to the jurisdiction of the Court. The Circuit Court overruled the demurrer, and the defendants have appealed.
We will first consider the demurrer as affecting the plaintiff Lila Johns. She was clearly an improper party. She was not a distributee of the estate of James Johns, but was entitled only as a distributee of John B. Johns, who was a distributee of the estate of James Johns; consequently her right was properly represented by the plaintiff M. Jane Roberts as administratrix of John B. Johns. It follows that no decree can be demanded by Lila Johns,,
*108One of the grounds of demurrer to the complaint was that it stated no cause of action in favor of the plaintiffs against the defendants. As it regards Lila Johns, the point made by the demurrer was clearly well taken, and as to her the order overruling the demurrer is erroneous and must be set aside and the complaint as to her dismissed.' Upon such dismissal the parties must pay their own costs, as it does not appear that the defendants have been subjected to either costs or inconvenience by the misjoinder of her name with that of the administratrix as parties plaintiff.
It remains to consider the demurrer as it regards the administra-trix, and, for the purpose of convenience, the complaint will be treated as if brought by her alone. There is no question but that such a bill could have been brought in the Court of Chancery prior to the present Constitution as against proceedings covered by the sanction of an exp arte decree of the Ordinary, and the facts here stated, spread out upon the bill and admitted by demurrer or answer, would have entitled the plaintiff to a decree.
Has the Court of Probate exclusive jurisdiction, under the Constitution, of the matter of the controversy presented by the present complaint?
It may be conceded that the plaintiff might have applied to the Probate Court to set aside an ex parte decree, and have required the matter of the accounting of the administrator to have proceeded upon proofs and allegations to which all parties in interest, creditors or distributees, might have participated.
The effect of such a proceeding would have been to open the accounting for the benefit of all concerned, whether creditors or distributees, and to procure a reformation of the accounts and to fix the rights of the several parties in interest under such accounting.
The complaint demands an account as “ between the parties,” who are the plaintiff, the administratrix of a distributee, the ad-ministratrix, and S. H. Johns, charged to have had improper dealings with the administrator, who is also a distributee. What the plaintiff has sought to do is to fix a personal liability on the administrator as it regards the effect upon her rights as administratrix of his alleged fraudulent misconduct.
The plaintiff is not compelled to seek to reform the accounts as a whole, but, leaving them as they stand as affecting all other parties interested in the administration, is at liberty to charge the administrator — on the ground of fraud — with procuring an inequi*109table settlement as to the measure of liis liability. It is competent to obtain relief in equity, as against one clothed with authority of a fiduciary character, for any injurious consequence or fraudulent conduct, and procuring prima fade evidence of discharge from responsibility under such fiduciary character is an act injurious to those interested in a full and fair accounting.
The fraud of the administrator is the proper foundation of such a jurisdiction, and the decree sought is not necessarily one tending to charge the assets of the estate as such and to subject them to a rule of distribution different from that which formed the basis of the accounting under which the discharge was granted, but may be personal as between the plaintiffs and the administrator, the remedy being based on personal wrong and measured by the injury to the plaintiffs.
There being, then, such a remedy as that which the plaintiff has a right to demand under her complaint, the Court of Common Pleas, invested with full equity powers, has undoubted jurisdiction of it.
The Constitution (Art. IV, § 20,) gives the Probate Court “jurisdiction in all matters testamentary and of administration.” Is the entertaining of such an action a “ matter of administration ”? Clearly not; matters of administration consist in collecting, reducing and holding personal assets, paying debts, making distribution and accounting therefor.
A personal remedy against an administrator for wrong done, by means of which distribution has taken place in a manner injurious to the plaintiffs, is a matter distinct from things done in the course of administration. Whatever is doné in the course of administration necessarily affects all concerned in the results of the administration. The present question affects only the parties to the suit, and as to those it is hereby to be assumed that the plaintiff seeks the benefit of a new accounting in behalf of S. H. Johns, who is charged by her with complicity in the matters alleged.
It is clear that if the plaintiff had sought a remedy in the Probate Court it would necessarily have been of a different character from that which she has a right to claim under the complaint, and consequently there is no ground for holding that the present action is one that should have been brought in another form in the Probate Court.
The appeal must be dismissed as it regards M. J. Roberts.
Melver, A. J., and Hashell, A. J., concurred.