(dissenting). The relator was appointed administrator de bonis non with the will annexed of the estate of one John Schehr, which estate at that time consisted of personal property, and it came to the hands of the relator. The testator’s widow claimed that she was entitled to the possession of the entire estate as absolute owner, and that, at all events, she was entitled to the possession and control of the property during her natural life. This being disputed, she filed a bill in chancery for a construction of the will, and relief, and, upon a hearing in this court upon appeal, her bill was dismissed, with the intimation that she was entitled to the income from the estate, and, as the trustees named in the will had re*466signed, an application might be made to a court of chancery to appoint a trustee, and this was done, the relator being appointed. He administered the trust until the widow’s death, when he filed his final account as trustee in the equity court, showing a balance of $2,024.92 in his hands, giving notice to interested parties. A month later he was cited into probate court to show cause why he should not file his final account as administrator, and appeared and filed such account, but insisted that he had filed his final account in the court of equity, and that distribution must be ordered by that court. The probate court made a decree that he was indebted to the estate in the sum of $5,415.52, being upwards of $3,000 more than his unsettled trust account showed to be in his possession. This proceeding was removed to the circuit court by certiorari, where the order of the probate court was affirmed, and it is before us upon writ of error.
The order of the probate judge was appealable, and it would seem that an appeal would have been the better practice, as the merits of the question could then have been reviewed. As it is, we must dispose of the case upon the question raised, viz., whether the probate court had jurisdiction to require an accounting. Relator is not entitled to this relief, because the probate court has jurisdiction over its administrator to compel an accounting, and to close the estate upon its books. That court had an open estate upon its records. Its letters of administration were out, and the administrator’s account showed him charged with a large amount of property that was unaccounted for. The probate court was unable to take judicial notice of litigation elsewhere, or the payment of the fund by the administrator to a trustee. It was proper for the court to require a settlement of the estate at a proper season. Whether it was a proper season, and what there was to settle, if anything, would appear upon the hearing.
We do not find it necessary to discuss several questions which suggest themselves, viz.: Whether the appoint*467ment of Mr. Look as trustee by a court of equity drew to that court the settlement of the estate after the execution of the trust which that court appears to have declared, viz., the custody of the fund for the benefit of the widow, thereby devesting the probate court of its power to complete the administration of the estate afterwards; or, if equity might have taken such jurisdiction, whether it did or not. It may be that either would be a complete answer to the probate judge when the facts should be presented, and the administrator thereby become entitled to be discharged. It does not appear to have been considered so; but, if the probate judge was wrong in his conclusion, his order can be reviewed upon appeal. Whether and to what extent the questions passed upon by the court of chancery are res adjudicata, as against the persons now entitled to the residuum of the estate, we need not here consider; and whether it is necessary that an adjudication be made by the probate court before the probate bond may be resorted to by distributees we need not determine. It is enough that the administrator had not filed and had not settled his account with the probate court. This we understand that that court has always the right to compel.
The order of the circuit court should be affirmed.
Montgomery, J., concurred with Hooker, J.