(dissenting). When this case was before this 'Court, and the demurrer overruled (70 Mich. -, 38 N. W. Rep. 221), it was decided that without proof upon the questions raised by the contending parties it was better to hold the pleadings open for final examination, and to make no rulings on the law points till the whole matter was investigated. Upon the record as finally made up in the circuit court for the county of Wayne, that court sustained the complainant’s bill, and held defendant was not holder of a superior title. The opinion is not before us, and the decree contains no specific recitals. But there can be no question under our former decision that complainant’s title is on its face valid, unless overcome by the subsequent probate proceedings, and that her legal title called upon defendant to show a better one. The decree below should stand, unless shown satisfactorily to be erroneous.
It is only necessary, in view of the statement of facts set out in the former decision, to indicate briefly the controversy as it now stands
Olney Cook, of Detroit, died in August, 1876, leaving all •of his property to his wife, and making her and Boyal O. fiemick executors. When the will was admitted to probate, bonds were required in the sum of §10,000, but on Mr. Bemick’s declining to act Mrs. Cook filed a residuary legatee’s bond to pay debts and legacies, in the sum of §1,000, which was approved by the probate judge. No one appealed from this proceeding, which took place at the October session of the Wayne probate court, on Monday, October 2, 1876.
On the twelfth day of June, 1877, defendant filed a petition in the Wayne probate court, asking for a new bond. The only facts on which this petition was based, and'the only reasons given in it, were that defendant “is interested in said estate as a creditor of said deceased,” and that the bond .is insufficient “ for the following reasons, viz.: That the *64claim of your petitioner alone against said estate amounts to nearly $15,000.” No objection was made in this petition to the regularity or propriety of the original acceptance of the bond, and no reason is given why complaint was not made earlier.
It does not appear from the record what notice was given of this application. On the ninth day of July, 1877, the probate court ordered Mrs. Cook to execute a new bond in the sum of $20,000 within 10 days, which she omitted to do. It does not appear that Mrs. Oook was notified of this order.
On July 21, 1877, defendant filed another petition, praying for the removal of Mrs. Oook as executrix, and that she account. The facts set out are (1) that defendant “is interested in said estate as a creditor of said deceased,” and (2) the neglect of Mrs. Oook to file a new bond. There are no allegations showing notice or anything beyond the omission to give bond. On the same day, July 21, 1877, Mrs. Oook was removed.
On September 3, 1877, Henry D. Barnard was appointed administrator de bonis non with the will annexed. The record does not show upon what application or notice this was done.
Commissioners were appointed September 10, 1877, and reported March 21, 1878. Nothing appears concerning them or their action, except that they allowed a claim to defend, ant for $13,931, but of what nature the record is silent, and no other creditors appeared.
On the second of July, 1879, Mr. Barnard filed a petition for leave to sell real estate, and on September 30 he was licensed to sell the land in controversy, and other lands not described in the record. On March 5, 1880, this and other land was sold to Francis Palms, the report of sale being made April 5, and confirmed April 21, 1880. December 10, 1880,. Mr. Palms conveyed to defendant, and the deed was recorded November 1, 1881.
*65Complainant’s title came in this way: On July 18, 1877» Mrs. Cook, the residuary legatee, conveyed the lo, in dispute to S. Titus Parsons by .warranty deed, for a stated consideration of $4,000. This deed wa3 recorded October 25, 1877. On November 15, 1877, Parsons and wife conveyed by warranty deed to complainant for a consideration of $6,000» actually paid in property sworn without contradiction to be worth that sum. On the first of January, 1878, complainant went into open and recognized actual possession, and has-ever since been so possessed.
Neither Palms nor defendant ever undertook or sought to get into possession, and complainant, having no other means of settling the title, brought this bill, April 27, 1887; defendant having held claim for six years and upwards without moving to enforce it.
There are only two laws under which defendant could have been incorporated. It does not appear from the record which statute was complied with, but both contain positive directions for what purposes savings banks may take or hold lands (How. Stat. §§ 3142, 3231), and both absolutely forbid taking or holding for any other purpose (How. Stat. §§ 3143, 3231). Banks have always been limited in this State in their power to take lands, and it was held in Bank of Mich. v. Niles, 1 Doug. 401, that such a restriction as appears here made the contract under which land was taken absolutely unlawful and void.
The present record contains nothing to sustain the purchase. The property is not a banking-house or occupied for banking business; it was never mortgaged to defendant to secure a debt lawfully incurred; and it was not sold upon any judgment or decree in defendant’s favor, and was not. bid off by defendant at all, but by another person.
Furthermore, in the Savings Bank statute in How. Stat. § 3231, property not used for the business of the bank is required to be sold within five years from its acquisition. *66'Under the practice, in suits like the present, a party setting ■up a claim to land, and yet lying by and refusing to enforce it, is entitled to no equitable consideration, and must rely on •such strict rights as he possesses. As the party in possession cannot resort to a legal action, the only one who could do so, •and who relies on what is claimed to be a legal title, should not be favored beyond his legal right.
This defendant admits and asserts that it had no purpose •of resorting to legal remedies at all, and was holding back to compel complainant to sue. There is no explanation given which would bring the defendant within any enabling .provision of the statutes as a purchaser, and none which ■explains the retention beyond five years. Whether or not this latter violation of law should be regarded in this suit, the former is settled by authority. So far as banks are concerned, they have no general power to take lands.
But the question is presented, and was raised on both hearings, whether the complainant’s purchase from the residuary legatee’s grantee is subject to any interference by the action of the probate court. There are several subordinate inquiries involved in the record. The question coming first in order of time, as well as being otherwise important, relates to the liability of an estate once adjudged to the residuary legatee to be thereafter meddled with by the probate court as coming under the rules applied to ordinary estates.
In the outset it must be remarked that this case must be governed by the laws of Michigan, as recognized and construed by this Court, and that the statutes or decisions of •other states cannot prevail against our own. The only state to which counsel referred for light is Massachusetts, from which it was insisted we borrowed our statutes, and to which we should look for guidance. It is not true, however, that we copied our probate system from that state, as it now stands, to any general extent, and in some of the most impor* iant matters bearing on this controversy we distinctly rejected *67that system. But in the light of our own repeated rulings it would be violating all rules of decision to override what has been recognized as the law of our own State to follow the decisions of any qther region whatever. In referring to some of the differences between the two states, which, however, would not authorize some of the assumptions made for them, I do not recognize that we should, under any circumstances, disregard our own decisions, as to the proper force of the statutes.
Under our Michigan probate system, when an estate, whether testate or intestate, is settled in the ordinary way, the executor or administrator gives bonds to inventory and return all property coming to his knowledge; and to administer according to law and to the will of the testator all his goods, chattels, rights, credits, and estate, and out of it to pay all debts, legacies, and charges, or such dividends as shall be ordered by the probate court; to render a true and just account of his administration to the probate court within one year, and at any other time when required by said court; and to perform all orders and decrees of the probate court by him to be performed in the premises. How. Stat. § 5835. This bond covers every conceivable duty of any executor, and the purposes recited specially cover all of his usual functions. It is the plain purpose of the statute to leave no duty unprovided for.
By section5836 it is declared:
“If, however, the executor shall be residuary legatee, instead of the bond prescribed in the preceding section, he may give a bond in such sum and with such sureties as the court may direct, with a condition only to pay all the debts and legacies of the testator; and in such case he shall not be required to return an inventory.”
By section 5846 joint or separate bonds may be given in case there is more than one executor.
By our probate laws it is also provided that, except where *68guita are pending against the decedent, all claims, except for title or possession of land, shall he established before commissioners, or before the probate judge acting in the same capacity; and judgments recovered in suits pending must also be certified to the probate court, instead of being enforced by execution. And all claims are payable ratably, except a few preferred claims due to the government, or to persons holding special equities as recognized by statute. How. Stat. chap. 224,
In other words, the proceedings in ordinary estates are proceedings in rem, analogous to bankruptcy proceedings. The executor is only bound to the extent of the assets which he had or should have had. Basom v. Taylor, 89 Mich. 682; Peckham v. Hoag, 57 Id. 289 (23 N. W. Rep. 818).
It has been decided several times in this Court that all claims against estates in administration must be established under the probate laws, and that no other courts have jurisdiction to create charges against the estate, and that the probate court is the only court which can reach persons absent as well as present through its jurisdiction in rem. Dickinson v. Beaver, 44 Mich. 624 (7 N. W. Rep. 182); Clark v. Davis, 32 Id. 154; Barry v. Davis, 33 Id. 515; Shurbun v. Hooper, 40 Id. 503; Shelden v. Walbridge, 44 Id. 251 (6 N. W. Rep. 681); Patrick v. Howard, 47 Id. 40 (10 N. W. Rep. 71); Aldrich v. Annin, 54 Id. 230 (19 N. W. Rep. 964); Peckham v. Berrien Circuit Judge, 74 Id. — (41 N. W. Rep. 926).
These cases hold that courts of equity have no more power over claims and their allowance than courts of common law,, and that even on appeal the circuit courts can admit nothing not claimed below. And in Palm’s Appeal, 44 Mich. 637 (7 N. W. Rep. 200), it was held there was no way to reach the proceedings on claims acted on except by appeal. The statute is express that claims not presented in the manner specified shall be absolutely barred. How. Stat. § 5901.
*69The result of all this is that the whole business of settling up an estate in the ordinary way is in the probate court, which has power in some cases to extend time both for proof and for payment of debts, and that the files and records of that court will, if properly kept, show all the items of the estate, and their disposition, by the inventory and the accounting under it.
And every person claiming to be a creditor is bound by the proceedings from beginning to end, unless he appeals from them, precisely as in bankruptcy and other proceedings in rem, and because they are in rem. For manifest reasons constructive notice is all that can be given to creditors in most cases, inasmuch as they may be unknown or out of the jurisdiction, and the power so to reach them is only given by statute to the probate court. Dickinson v. Seaver, 44 Mich. 624 (7 N. W. Rep. 182). There is no instance' in jurisprudence where con structive service is lawful, except when the court acts in rem. No personal effect can be given to judgments without personal service. This is elementary. And accordingly when the res ceases to be within the jurisdiction the jurisdiction itself ceases. This was declared in Durfee v. Abbott, 50 Mich. 279 (15 N. W. Rep. 454), which will be referred to again.
This has been referred to for its bearing on the rights and duties of creditors who desire to assert their claims.
When a will is offered for probate, a general notice is given, which binds all persons interested. Those directly interested are the family and kindred, the legatees and devisees, and the creditors. The primary object of the hearing is to determine whether or not there is an intestacy. If the will is not sustained, the estate is subject to the ordinary administration as an intestate estate; and if there is no executor, the administration with the will annexed is granted in the same way as in a case of. intestacy. Any creditor is interested in the determination of these matters, inasmuch as a will may make *70provisions complicating the conditions of payment, or may appoint an executor who will not be a safe manager; and, whatever may be the result, the creditors are interested in having good and adequate bonds, but if they do not appear they may be damnified.
An executor’s bond is only required for the safety of parties interested, and it is sometimes very properly made only nominal. If the testator desires it, or if the property which the executor can dispose of is small, the bond may be safely made so, and, unless he has power to sell lands, need only be measured by personalty; and, if the executor is an heir or devisee, there is no occasion for covering anything that would fall to him, except in favor of creditors or other' legatees. But, as all bonds protect creditors, it is for their interest, and it is their duty, if they need protection, to appear and show it.
As the statute distinctly contemplates that bonds shall be given in view of the indebtedness of the estate, the judge of probate is bound to inquire into the question, and it must always be presumed that he does so, and that his conclusion is correct. If fault is found with it, an appeal is always open to the party dissatisfied, and if he fails to take it his mouth should be closed, unless he has been misled or defrauded, or without his own fault prevented from appealing. There can be no doubt of the power of the judge of probate to examine parties and witnesses concerning any matter on which he is to exercise his judgment. Carpenter v. Probate Judge, 48 Mich. 818 (12 N. W. Rep. 397); Rathbone’s Estate, 44 Id. 57 (6 N. W. Rep. 115).
In the present ease no reason was given in the application for a new bond why defendant made no showing, or why it did not appeal. It was not claimed in that petition that the probate judge was wrong in taking the residuary legatee’s bond as he did. On the contrary, that is assumed to have been legally and properly taken. Neither is it shown that *71defendant was not fully informed all the while on the subject and acquiescent.
On the argument in this Court it was claimed that, the judge of probate having fixed the executors’ bonds at $10,000, the subsequent acceptance of a bond for a less sum was not only wrong, but invalid, as defendant was not supposed to be in court or cognizant of the change. Such, however, is not the claim of the petition, and such is not the law.
The statute allowing an executor who is a residuary legatee-to give a restricted bond does not apply where there is also an executor ready to act who is not such a legatee. By Olney Cook’s will Mr. Remick and Mrs. Cook were both made executors, and when the will was probated it became the duty of the probate court to fix the bond on that basis, unless Remick declined on the spot, as he did not. Remick, as a-stranger in estate, would be liable to Mrs. Cook as residuary legatee, as well as to any creditors, and the penalty of the bond must therefore be such as would hold him for all that should come into his hands; and as the bond might be joint, and there is no statutory recognition of a difference in the-bonds of two joint executors, it would be necessary to have the bond large enough to cover the whole estate, so far as he-had power over it, and the bond was, no doubt, fixed on that basis. But the statute also contemplates a possible failure on the part of one or more executors to qualify. It also contemplates that a sole executor who is residuary legatee may give the special bond, and this could only be done when the other declined to act.
But when the residuary legatee became sole executrix, then,, as there were no other legatees, there was no need of a bond larger than would cover debts, and the security which Remick should have given for Mrs. Cook’s protection was no longer needed, and a smaller one was proper, unless the existence of debts had been brought to the attention of the court. But the probate proceeding#*72upon, a will are not terminated by fixing the penalty of the bond. If no bond is given seasonably, then the estate may be turned over to an administrator at the request of the parties who would be entitled to be heard in case of intestacy; and, as no creditor can procure allowance and payment of his claim without administration, it was the duty of defendant to pay such heed to the proceedings as to be able to know whether any executor qualified, so as to have administration granted in case the executors failed to do so, and in that case to look after both the person and the security.
Defendant was bound, therefore, on its own behalf, to be informed what course was taken, and there is nothing to show a want of such knowledge, or any reason for it, or to show why, if dissatisfied, no appeal was taken. As already stated, there was nothing in the petition and nothing in the proof to indicate that defendant did not know all about the estate, as presumably it did. The acceptance of the bond, not appealed from, was an assurance to all the world that the statute had been complied with which turned over this property to the residuary legatee.
There is nothing in the statute or in the nature of the case which called for any further official action.by Mrs. Cook as executrix. 'By accepting the statutory permission, she had made herself personally liable for the debts. And there is no need of any formality on the part of an executor in turning over devised lands to a devisee. They pass by the will itself. It was held in Chapman v. Craig, 37 Mich. 370, that a residuary legatee is not bound in an action to show that the estate is settled, or the debts and legacies paid and the representative discharged, but may sue as owner. And even in regard to specific bequests it was held in Eberstein v. Camp, Id. 176, that the executor ought not to withhold them, unless apparently necessary. In the case of a devise, the title never vests in the executor, and the devisee takes at once, subject to any *73burden which the law imposes. And in Kennedy v. Shaw, 43 Mich. 359 (5 N. W. Rep. 398), it was held that such property could not bereelaimed without necessity; and that an amicable settlement of an estate, and the resignation of the administrator, were a sufficient consideration for a promise by one of the family to pay the debts of the estate. So it was held in Mower’s Appeal, 48 Mich. 441 (12 N. W. Rep. 646), that a residuary devisee and legatee, under a will not probated in Michigan, had a vested interest which authorized him to appeal from a decree settling the Michigan administrator’s account. And it is also held that the probate of a will relates back to the death of the testator, so that transfers by legatees made before probate, and actions of ejectment brought by devisees before probate, are validated by the probate. Allison v. Smith, 16 Mich. 429; Sutphen v. Ellis, 35 Id. 446; Richards v. Pierce, 44 Id. 444 (7 N. W. Rep. 54).
An executor, as such, has no estate in devised land, and a residuary legatee, even under an ordinary administration, could only be subject to have his title interfered with when needed for the payment of debts, and in that case would not be personally liable to any extent for such debts. The only reasonable object of such a statute as ours allowing such a jegatee, if executor, to give a bond merely to pay debts and legacies, leaving out all conditions of inventory, accounting, and conforming to the orders of the court of probate, must. be to take the estate entirely out of the hands of the court, and substitute the bond for the assets. If bound to pay all the debts, and still liable to have the lands and other property subjected to administration, there could be no advantage gained and no reasonable purpose subserved. The reasonable meaning of the statute is that the party shall do whatever the condition of his bond calls for, and no more. The general bond, as before pointed out, specifies the whole duties of an executor. The substituted bond covers only the payment of debts and legacies. On the other hand, under the general *74bond, the debts and legacies are payable out of nothing but assets of the estate. Under the substituted bond, they ave payable whether the estate has assets or not, and if the assets fall short the shortage does not lessen the liability. The several decisions made on questions arising under the Hatheway and McKeown wills exemplify most of the principles which are involved in this case.
The first of these cases is Hatheway v. Sackett, 32 Mich. 97. Gilbert Hatheway made a will which contained several bequests to various persons and purposes, and made James S. P. Hatheway executor and residuary legatee. Among other things the testator made a bequest to the village of New Baltimore for a school. James S. P. Hatheway gave a residuary legatee’s bond. The village sued in the name of the judge of probate, to whom the bond ran, to recover the legacy. It was claimed in defense that the legatee could not sue until an order had been made by the judge of probate directing its payment, and that no suit lay for a legacy at law. It was held that, the bond being absolute to pay debts and legacies, no order of payment was required, and it was recoverable under the terms of the bond, at all events.
The next case, of Hatheway v. Weeks, 34 Mich. 237, resembled this case somewhat in its circumstances, but from an opposite stand-point. It was brought to have the estate restored to one of ordinary administration, because the bond had been filed under a mistake of fact. The general outline was that the estate had been supposed to be worth over $200,000, and the bond given accordingly, whereas $60,000 in government bonds, assumed to have been on deposit, were not to be found, and an item of $80,000 turned out worth only $50,000. Other similar deficiencies appeared. In view of these facts, it was prayed that the estate might be put in the ordinary course of administration,, and the assets marshaled and applied in the usual way, ratably on debts and legacies, and that the obligors be relieved from the special *75bond. It was held that the hardship of the particular case could not be regarded, and it must be decided on the principles which would apply to other cases. The Court then declared what was the meaning and effect of the statute, and referred, as we have done to some extent, to the rules applicable in ordinary cases, and the requirements of the ordinary bond, and the duties of the executor as occupying fiduciary relations in the care and disposal of the property and obligation to account for it.
It then proceeded to show that under the residuary legatee’s bond the property became his absolutely, so that there was no duty to* creditors and legatees in its management and disposal, and their only remedy was on the bond, and they had no claim against the assets. It was held that when a residuary legatee gives the special bond, and gets control of the property without accountability for it, there could be no restoration, and the case must stand by his voluntary election.
If the assets had still remained bound to the creditors, as defendant in this case claims they are, that case would not have been properly decided. It is not beyond the power to rectify vital mistakes, and it would have been very inequitable to give the creditors both the fund and the personal liability for which there was no consideration. It is only on the ground that the bond has been substituted for the fund that the case is founded.
This same principle was more distinctly applied in McElroy v. Hatheway, 44 Mich. 399 (6 N. W. Rep. 867). There a surety on the legatee’s bond filed a bill to compel the application of the assets to the payment of debts and legacies, and for the appointment of a receiver to preserve them for that purpose.
The two concurring opinions in that case, while intimating that cases existed where sureties could be protected against the diversion and mismanagement of funds, held that such could not be the case where the property belonged absolutely *76to the principal in the bond, and that the title of a residuary legatee could not be meddled with. This was pointed out at length in the opinion of Judge Cooley, which was concurred in by his brethren, holding that the assets did not constitute a trust fund, but had become the absolute private property of the residuary legatee, not distinguishable from any of his other property, with which neither sureties, legatees, nor creditors had any concern whatever. The opinion concludes as follows:
“ We cannot distinguish this case on any grounds but such as would entitle the parties concerned to demand a regular administration; and that would defeat the purpose* of the statute which authorizes the residuary legatee to give bond for the payment of all demands, and receive the estate as his own.”
Before any further litigation came up for review in the Hatheway will, the will of John T. McKeown, and the residuary legatee’s bond under it, became involved in very much the same way.
In the case of Durfee v. Abbott, 50 Mich. 278 (15 N. W. Rep. 454), one Culver sued for a debt due him from the estate of McKeown. The proof of this claim was found in its allowance by the judge of probate on an opening of the commission, and a time of hearing set and notice given; the order for notice purporting to have been made by consent of the attorney of the residuary legatee. The opinion in that case discussed very fully the difference between ordinary 'administration and the case where bond is given by the residuary legatee, and held that the judge of probate had no further power to bring in parties or creditors to have claims settled; that the bond put an end to the administration; and that the settlement of claims became a personal matter of the executor and the claimant, to be disposed of in their own way.
It was further held, which becomes important in another phase of the case now before us, that constructive notice is not sufficient to bring persons before the probate court, *77except in those cases in the ordinary course where such notice .is provided for by statute; that it was only where proceedings were in rem that such a course was permitted; and that there was no longer any res before the probate court, because the assets had become the private property of the legatee, and were no longer a fund; so that the legatee was liable, if at all, personally as for a debt he had assumed to pay. The demand, being a personal one, must be sued as such on personal service of process or its equivalent. The allowance of the claim was held void, and no evidence. Mr. Culver after-wards brought a new suit on the claim itself, and prevailed, as will be seen hereafter.
i In the same volume (Durfee v. Abbott, 50 Mich. 479, 15 N. W. Rep. 559) a similar doctrine was applied, but this time against the residuary legatee in part, and in part against creditors. Suit was brought by two legatees, and the defense rested chiefly on an alleged settlement by promissory notes extending the time of payment of the legacies. It was held that the probate court had, in case of a residuary legatee’s special bond, no power to extend the time to pay legacies, because the bond put an end to the administration, and the debts and legacies became his personal liabilities, and any extension of time to him without the consent of his sureties discharged them.
In Hilton v. Briggs, 54 Mich. 265 (20 N. W. Rep. 47), it was held that in an ordinary administration no personal liability could be created against an administrator without personal notice.
In Wheeler v. Hatheway, 54 Mich. 547 (20 N. W. Rep. 579), where both parties brought error, property which had belonged to Gilbert Hatheway, and used' by one of his legatees, was allowed to be set off in a suit to recover her legacy; and in view of a new trial, and questions which would arise under it, the doctrine was again asserted that the giving and *78approval of a residuary legatee’s bond put an end to the administration.
In Culver v. Judge of Superior Court, 57 Mich. 25 (23 N. W. Rep. 469), where the superior court of Detroit had undertaken to stay Culver’s suit for a deficiency on foreclosure, it was held he had a right to sue on the residuary legatee’s bond without the leave of that court, as an independent undertaking not involved in the chancery foreclosure.
In Wheeler v. Hatheway, 58 Mich. 77 (24 N. W. Rep. 780), an attempt was made on Hatheway’s behalf to induce this Court to qualify what was said in Ratheway v. Weeks concerning the relations of the residuary legatee’s bond to the administration, and the mistake in the condition of the assets, and it was claimed that Mrs. Wheeler ought only to take her ratable share in the actual assets. But this claim was disapproved. It was also insisted that Mrs. Wheeler’s claim should have been presented to the probate court and proved. But it was held this was settled otherwise by former decisions.
To hold that these decisions are no decisions, and that the rulings are not to stand as precedents, would be to overthrow the force of our judgments as rules of property and of conduct, and throw the law, as declared, into confusion. The cases cited for our consideration now have been cited'before, and have not been regarded as authorizing our statutes to be applied as defendant now seeks to apply them. I am not, for myself, prepared to allow any weight whatever to outside precedents on matters where we have our own. Our people are not subject to the authority of foreign tribunals.
But I do not think there is any considerable analogy between the laws of Massachusetts and our own on any question involved here. While there are some features common to us with several other states and with England, the statutes of Michigan concerning residuary legatees were not adopted *79in their present form from those places, and the differences bear directly on the questions involved here.
As already pointed out, our statutes in ordinary cases require the entire business of administration and distribution to be conducted in the probate court. Inventories, which are necessary for accounting, the proof of debts, the sale of real estate, the accounting, and all other matters of administration, appear in that court. It has complete jurisdiction in rem, and draws to it every incident of its disposal.
Prior to our statutes of 1846, which are now in force, the law was different. From the early days of the territory, under laws selected from Vermont, the only estates completely under the direction of the probate court were such as were represented as insolvent, and those were managed just as all estates are now managed, so as to make all but preferred debts solvable ratably. But by the act of 1809 (2 Terr. Laws, 13-36) the executor’s bond was only to file a true inventory and to account, and, while the residuary legatee was authorized to give a bond for payment of debts and legacies, no further reference was made to it. But, while creditors were required to prove their debts, this was chiefly to enable the executor to find out whether the estate was insolvent; for, if not insolvent, debts were collected out of the assets by execution. By that law the probate court could license sales, and the executor could turn out property on appraisement to pay debts. By the Bevision of 1827 the power to license sales was confined to the Supreme Court and county court, and subsequently the probate court received concurrent power. 2 Terr. Laws, 454, 696, 710. But in all those laws the creditors enforced their debts by suit and execution, and the law specially exempted from inventory all property exempt from execution; and in all but the law of 1809, which was repealed by the legislative council, no claims were presented in th.0 probate court except in the case of insolvent estates.
The State Bevision of 1837-38 followed the existing prac*80tice in its general policy, by confining the ratable payment of debts out of assets to insolvent estates, and by leaving creditors in other cases to suit and execution. Licenses, as before, were given by Supreme and circuit courts, and by the probate court. The executor was allowed to give public notice of his appointment, and was protected in paying debts against all persons not giving him. notice of their claims, and all suits were governed by a short statute of limitations. In case of debts that did not accrue within the short period, they had to be presented to the judge of probate before the estate was closed, but his allowance did not bind the estate (Rev. Stat. 1838, p. 287); and an executor was not liable to suit after assets exhausted, if he paid debts without notice (pages 288, 289).
The Revision of 1838, by part 2, tit. 4, c. 1, § 3, introduced a part, of the section now existing, concerning residuary legatees’ bonds, expressly allowing the executor who is such legatee to give bond conditioned to pay all debts and legacies, but it differs from the present statute in various important particulars. In the first place the laws of 1838 required the usual bond to be conditioned:
1. For a true inventory.
2. For administration of assets.
3. For accounting.
But it did not contain the fourth requisite of our statute, which is:
“To perform all orders and decrees of the probate court by the executor to be performed in the premises.”
The old probate court had nothing to do with the payment of debts, which were enforced by other courts. In the second place the laws of 1838 did not provide that the condition to pay debts and legacies should be the only condition of a residuary legatee’s bond, while the present law is express on that subject. Rev. Stat. 1846, p. 283.
In the third place, the laws of 1838 contained a section *81corresponding with the Massachusetts section, which declared expressly that the giving of the residuary legatee’s bond should not release the creditor’s hold on th.e real estate, which might be taken and sold on execution by any creditor as if the general bond had been given. Section 4, p. 277. This section was left out of the Revision ot 1846, and must have been left out for some purpose; and the only conceivable reason is that there is no sense in, compelling a legatee to become personally liable for debts, and yet to have no title to the assets. The Massachusetts decisions are in harmony with the law of 1838, which left the assets liable to appropriation by creditors in the only way by which the law provided for their application to debts. But under our statutes, since 1846, the creditors have never had any right to pursue the assets, and they have been compelled to look to the executor’s bond in case they are not paid voluntarily. When the statutes say the only condition in a residuary legatee’s bond shall be the payment of debts and legacies, they expressly exclude any duty to retain the assets subiect to claims and administration. Exempting the bond from the only conditions which bound the assets cannot be construed as requiring by implication what is expressly excented. It is also not unworthy of notice that under the Massachusetts statutes it is not a matter of right in the residual legatee to give the special bond, but it is within the discretion of the probate court to allow it in case the other bond is not necessary for the protection of parties interested, and the condition of the bond even then contemplates payment, not only of debts and legacies, but also of probate allowances, which could not be made if the administration dropped. And beyond this, express provision is made, not only for giving nominal bonds in certain cases, but also for requiring new and larger bonds, if required by change in circumstances or any other sufficient cause. Chapter 3, Revis*82ion Mass. 1885. This last provision will require further attention presently.
The differences between the old laws and the present ones, in regard to residuary legatees are so vital, when considered also iu reference to the present system of a ratable application of assets in payment of debts in the probate court instead of their enforcement in other courts, so as to give priority to the first levy, and leave the latest comer the risk of getting nothing, that decisions made under the old system can have no application under the changed law in the particulars involved in the present controversy.
But as the whole matter has been determined by our own decisions, we should follow them, even if the changes had not been so radical.
If the effect of giving thf residuary legatee’s bond is to remove the estate from the course of administration, and to end the jurisdiction of the probate court in rem, then that court cannot regain it without some statutory authority. No court has general power to recall to its control a case that has gone out of it. The purpose of the statute being to put the residuary legatee, as such, in control of his own property, his official character thereafter, if it exists at all, is formal and not essential. He has no further duty to perform officially, and no security is needed from him as such. And, even if further security could be required, it could not, without legal provision to that effect, reinstate the case for administration in the ordinary way. Under the old laws the administration was never interrupted.
But even under the old laws the probate court had no power without statute to require new bonds, or to affix any penalty for not giving them. In the absence of statute, such jurisdiction as existed anywhere to require security was vested in equity, and was governed by acknowledged rules. By the statutes of 1838, p. 309, § 37, the power to require a new bond was vested in the S upreme and circuit courts as well as *83in the probate court; and it was a power strictly limited to cases where the sureties were insufficient, and did not cover ■any case where the court had once settled the amount of the bond. It was not given as a mere incident to probate juris■diction, and could not very well be included in that. It is easy to see that great abuses might follow the unlimited possession of any such power, and defeat the purposes of a testator by depriving the person he has chosen to manage his estate of the control of it. In the Eevision of 1846 it was not deemed proper to make statutory provisions for any change in the bond, and if parties looked to their interests at the proper time no case can readily arise afterwards which ■could not be rectified in equity.
In order to undo the action which fixed the rights of a residuary legatee, if it could be done at all, that proceeding ■must be set aside by some adequate remedy, so as to leave it ■as if it had not been done. And this, in the absence of statute, must be, if at all, by bill in equity for relief against it as •either fraudulent in fact or so inequitable as to be fraudulent in law. If, as we have decided, the object of the bond is to take the estate out of the course of administration, there is no longer any need of an official executor, and the office is practically terminated. Eemoval from office would not be available, for there is no office to be removed from. Until the new condition is set aside, there is nothing in the probate court to move in. There is not now, and never has been, any law which allows a judge of probate to exact or to receive a new bond containing different conditions from the old one. There were two law's in 1875 on that subject, and neither of them authorizes what was done here. Act No. 50, p. 47, is entitled—
“ An act to authorize judges of probate to require new bonds from executors, guardians, administrators, special administrators, and trustees.”
This statute is confined by its terms to cases where the *84judge of probate has a right, if he chooses, to act on his own. motion when he thinks a change necessary, and this could not be the case where the control of the assets has passed to the legatee. There is nothing in this law to authorize an additional or larger bond, and its evident purpose is to secure ■ adequate sureties. It does not provide any penalty or give the court any power to remove from office for any failure to give a new bond. It was not claimed on the argument that this statute covered the case. It was also peculiar in not fixing the necessity of any notice except such as the judge of probate should direct, and, as the only thing he was authorized to do was to discharge the old sureties in case a new bond was filed, it seems to have been rather a renewal of the old provision allowing sureties to be relieved than for the security of the estate. At the same session, and very soon after Act No. 50 was passed, Act No. 162, p. 191, was also passed. That is entitled—
“ An act relative to changing the sureties on bonds by judges of probate.”
It is under this latter act that defendant claims to have-' acted, and evidently did act. This act provides that a petition shall be filed by “ any person interested,” and authorizes action “after notice to the principal in the bond.” A subsequent section allows sureties to seek a discharge, “after due notice to all parties interested,” and it provides that if the principal fails to give a new bond he may be removed, and some other person appointed in his stead. The body of this act provides for a new bond—
“ When the sureties or the penal sum in any bond given to' the probate court are insufficient.”
But the title of the act contains no reference to changing the penal sum, and so important an interpolation cannot be-introduced under a title which is not only specific, but which covers precisely and fully all that was provided under the*85Bevision of 1838, and which had for some reason been left out in 1846, and which was confined to a failure in the sufficiency of the sureties. Bev. Stat. 1838, p. 309. It was in that statute regarded as a power not belonging to the probate jurisdiction as incidental, and, while the probate judge was allowed to act, the Supreme and circuit courts also had co-ordinate power. None of them, however, were authorized to do more than replace the old sureties. It is to be remembered that the requirement and change of security from executors was never a matter of original probate jurisdiction, but belonged to the jurisdiction of a court of equity, and was enforced on a case made of danger to the safety of parties interested. Story, Eq. Jur. §§ 603, 604; Dillon v. Lady Mount Cashell, 4 Brown Parl. Cas. 312. While there is no doubt a necessity for jurisdiction somewhere to guard against fraud or accident, it is not necessary to vest that power in the probate court, and in many cases that court could not have power or be at all suitable to bring in the parties and enter •on the inquiries essential to do justice. The general jurisdiction over persons and things, at law and in equity, belongs to the circuit courts, and any attempt to divest parties of a control once vested in them must generally be outside of the functions of any prerogative court.
This record itself shows the impossibility of doing justice in the probate court under any such stretch of jurisdiction. It has been held repeatedly in this Court that no one is bound to take notice of action in the probate court that is special, or not within the statute as to the method of giving it. Durfee v. Abbott, 50 Mich. 279 (15 N. W. Rep. 454); Hilton v. Briggs, 54 Id. 266 (20 N. W. Rep. 47); Frost v. Atwood, 72 Id. — (41 N. W. Rep. 96). It has also been uniformly held that an executor cannot sell devised estate oi which the devisee has taken possession and control, and that .such a sale is void. Atwood v. Frost, 51 Mich. 360 (16 N. *86W. Rep. 685), and 59 Id. 409 (26 N. W. Rep. 655); Eberstein v. Camp, 37 Id. 176.
Even the Massachusetts and the old Michigan statutes,which purported to allow creditors to pursue lands of residuary legatees, "confined the right to lands not sold in good, faith. Here we have an alleged creditor, waiting nearly nine months after the residuary legatee’s bond had been approved, never appealing from its approval, not claiming it-to have been improperlj approved, or to have been ignorant of it, asking a new bond on the sole ground of the inadequacy of the penalty. The statute only requires notice to-the principal in the bond, and does not authorize publication. It is a new proceeding, which is not made by law notice to any one but the principal. Before the time expired for anew bond the property now in suit was conveyed, and the residuary legatee had given a warranty deed to S. Titus Parsons for what purported to be a large pecuniary consideration. It is quite likely this was not an honest sale, but Mr. Parsons could not be brought into the probate court to answer that inquiry. It was a sale the residuary legatee had power to make, whether she had given any bond or not, and which she could not have revoked had she remained in office, or become executrix under a general bond. Moreover, it is expressly provided by section 5864 of Howell’s Statutes that all acts of an executor before the revocation of the letters of administration shall be as valid as if they had not been revoked. It was not within the power of the probate court to assume the powers of a court of equity to set aside a sale, and bring a purchaser into its jurisdiction to inquire into his rights, which on their face are valid; and a failure to give bond does not of itself vacate the' appointment. Carpenter v. Harris, 51 Mich. 223 (16 N. W. Rep. 383).
The difficulty does not stop here, nor is it removed or qualified by subsequent action, which is still less maintainable. The doctrine is settled that, before a probate court can inter*87fere at any one’s application, he must show affirmatively a sufficient right to interfere, and sufficient reason for so doing; and a failure to do this is not merely irregular, but it is jurisdictional, and renders the action void. The showing must appear in the petition directly. Besancon v. Brownson, 39 Mich. 393; Shipman v. Butterfield, 47 Id. 489 (11 N. W. Rep. 283). This petition, or rather these petitions, should show the petitioner is a creditor whose rights will be jeopardized unless he gets the relief desired, and, according to all the doctrine in such cases, should show why it has become necessary, and how matters have changed so as to require it.
The petitioner here does not show that the necessity is any different from what it was when the first bond was given, nor that the former action was not voluntarily acquiesced in, nor why no appeal was taken. It does not show that Mrs. Cook was not abundantly responsible personally. It fails in the first elements required in such contingencies. But it is also fatally defective under our own decisions in just such a case. In Breen v. Pangborn, 51 Mich. 29 (16 N. W. Rep. 188), it wa3 held that a person not personally served was not bound by proceedings for administration on behalf of one who did not show a superior right to apply. And so in Gillett v. Needham, 37 Mich. 143, it was held the jurisdiction was always questionable by parties interested in it. But the case of White v. Spaulding, 50 Mich. 22 (14 N. W. Rep. 664), is perhaps more directly in point, for there proceedings to remove an administrator were held jurisdictionally bad for lack of a proper showing in the petition. It was held there that it was not enough to aver that the person petitioning is a creditor. It must appear by the petition how he became so, and what is the nature of his claim; and this is in accordance with the universal rules of practice. TTnless the nature and facts of the claim are averred, no one can be expected to be able to meet the issue of the title to apply. In this case, while we have no means of passing on the facts, it does appear *88that petitioner did not present its claim when the bond was accepted, and it does not appear from the petition that it was a claim which ever existed against Olney Cook. There is no allegation in the petition to remove Mrs. Cook beyond the averment “ that it is interested in said estate as a creditor of said deceased.” It appears affirmatively that the prayer of this petition was granted ex parte on the day it was filed, and there is nothing to indicate notice to anybody. At this time Mrs. Cook had no further interest in the property in question, and could not by her acts or silence prejudice the rights of any one else,
Mr. Barnard’s appointment as administrator de bonis non was not valid unless the other proceedings were valid, and, whether valid or not, could not bring back into the estate property already disposed of. And no one without personal notice could be bound to suppose that commissioners were validly appointed, or that the claim they allowed could bind the sold property. Before these commissioners acted, the title had passed to complainant, and she was in possession openly and notoriously, under a recorded warranty deed, which she took in good faith and for full value.
The petition for leave to sell was not made till July 2, 1879, a year and more than three months after the commissioners reported, and a year and ten months after the new administration. The license was granted more than two years after the new administration, and the sale was made more than five months after the license.' Complainant was not notified of any of these movements, and after the sale defendant, as admitted, purposely avoided making any attempt to enforce its rights, if it had any.
It is also singular that in this present suit there is no attempt whatever to explain what was the nature of defendant’s claim, and in what way it arose. Mrs. Cook was produced by the defendant, and is interested in getting the property applied in her own favor, and her testimony does *89not prove the debt, or show anything definite about it. If it was an indorsement, or if it was secured, as most savings-bank paper is required to be, by mortgage, those facts would have been material in determining the need or propriety of further security.
With a title which is legal on its face, and in conformity with law, complainant had a right to a decree unless defendant showed distinct and superior equities, not only as against Mrs. Cook, but as against complainant.
I do not think any such defense is made o" ‘
Sherwood, C. J., concurred with Campbell, J.