delivered the opinion of the court. •
This was a petition filed in the probate court -of Wilkinson county by Justus Hurd and his wife, who was the widow of Samuel H. Buford, deceased, before her marriage with said Hurd, and by 'Caroline Buford, by1 said Hurd, her next friend, against the appellant, who was the executor of Buford. The bill alleges that the executor had made a final settlement of his account in December, 1836, which had been allowed and confirmed by the probate court; but charges that .the account was fraudulent and unjnst; that the executor had fraudulently concealed large sums of money not stated in the account, and had fraudulently neglected to account for the entire proceeds of the personalty. It then prays that the account may be. opened, and the order confirming it'set aside, and that a new account be-taken. Several omissions are pointed out. To this petition there was a demurrer, and the decision of this court upon the demurrer will be found in 5 Howard, 562. After the cause was remanded to the probate-court an answer was . filed, which contains a denial of all fraud in the settlement, and says that the account was fair and full, and embraced all his transactions in regard to the estate, so far as it was then wound up., *199That at the same time he filed a list and schedule of all other notes and claims belonging to said estate then uncollected, and which includes all the items mentioned in the bill as omitted in the settlement, but which, from some cause not known to the respondent was not recorded. Again, at March term, 1838, he applied to the probate court for leave to file another account, comprehending his acts after the settlement in 1836, which was refused by the court. A copy of this inventory and of the order of refusal accompanies the answer. It states that he exhibited to the commissioners appointed to make distribution of the estate a list of all notes and claims due the estate; and that he was obstructed and hindered from making the division by the conduct of the complainant Hurd, tie became the guardian of the, petitioner Caroline in 1837, and is still such; he denies that he was ever requested to account farther before the petition was filed, and insists upon the settlement of 1836 as final, and .as a bar to the relief asked for in the petition. The probate court set .aside the former settlement, and decreed a new account to be taken, embracing all the acts of the executor from the beginning. From this order an appeal is taken to this court. There was no testimony taken on either side, and the case was heard upon the bill, answer and exhibits.
The account of the executor, as settled in 1836, cannot be set aside for any irregularity or error in the proceedings: that could only have been done by appeal. Shottenkirk v. Wheeler, 3 John. Ch. 280. The only question is, whether there was such fraud as would authorize the court to vacate it. After a careful examination of the record, we do not perceive that there is. The estate appears to have been judiciously managed, and not the slightest intention is manifested to do injustice to the parties. All the litigation appears to have grown out bf the failure to record the inventory of notes and claims due and unpaid at the time of the settlement, and which according to the answer was then filed, and out of the refusal of the court at a subsequent term to permit the executor to make a further settlement. The order therefore setting aside the former settlement is erroneous, as that settlement was conclusive, and could only be impeached in an original proceeding, on ac*200count of fraud in obtaining it. Griffith’s Administrator v. Vertner and Wife, 5 How. 738; Gildart v. Starke, 1 How. 454.
The objection taken to the uniting of the petitioners in the suit as parties, cannot be sustained.' Their interest is not separate and distinct in that sense which prohibits their joining in the prosecution of a claim in which they have a right in common. The claims of an heir to realty, and of a distributee to personalty, are different, and cannot be united in one suit. 3 Howard, 258. But legatees or distributees who have an interest in a, common fund, where neither has priority, but each is entitled to a share, ought all to be parties, according to the general rule. Richardson v. Hunt, 2 Mun. 148; 2 Robinson’s Practice, 270. Such was this case. The defendant held a fund consisting entirely of personalty, belonging to the complainants, derived from a single source; their relative rights might therefore be very properly adjusted in one suit. The proceeding is against the defendant entirely in his character of executor; as the guardian of the infant complainant he is not made a party at all. Where two legal characters of different kinds are sustained by one person, they are as wholly distinct as if they pertained to two, and the party must be dealt with solely in reference to the character in Avhich he is brought before the court. 2 Bland, 99; 3 Peters’ S. C. Rep. 90; May v. Tomkins, 6 Mun. 520. No decree can be made in this cause affecting the rights of the defendant as guardian.
It is insisted by the counsel of the appellant, that he cannot be required to make any further settlement or account, in regard to his transactions as executor, since the settlement which is called final in the pleadings. It is difficult to perceive on what principle this exemption from further accountability is claimed. As long as he sustains the character of executor, and continues' to act in that capacity, he must be liable to give an account of his acts to the tribunal from which he derives his authority. It is manifest from the answer that the appellant regards himself as executor so late as March,’ 1838, at which time he presented a petition as executor to the court, praying that he might be permitted to present a neAV account. There is nothing in the record to show that he has since ceased to sustain that relation; and he must still be bound to make a settlement of his accounts not comprehended in *201the former settlement, and originating since its date. This direction is therefore given. In other words, a settlement is directed to be had, to embrace all the matters pointed out in the petition and admitted in the answer not to have been included in the former account. • '
It is not intended in this opinion to interfere with the rights and duties of the appellant as the guardian of the infant petitioner. He is not before us in that capacity, and we leave him to act in that respect as may be lawful and proper.
The judgment will be reversed and the case remanded, to be proceeded in according to this opinion.
But for the decision upon the demurrer in this case, it might be questioned whether a petition in the probate court to set aside one of its former orders for fraud in obtaining it, could be sustained. The general doctrine is, that the proceeding must be by bill, not by petition. Cooper Eq. Pl. 97. But this is a minor objection. The difficulty is as to the jurisdiction of the court in such case. The power to set aside a probate or any other order of court obtained by fraud, belonged in England not to the ecclesiastical, but exclusively to the chancery court. See 1 Vesey, sen. 283, Banugly v. Powell. The ecclesiastical courts in England had full power and jurisdiction in all matters of administration, and matters testamentary; and this is the extent of jurisdiction conferred upon our probate court by the constitution. The same instrument establishes a superior court of chancery, with full jurisdiction in all matters of equity. The power to vacate a judgment, order or decree, for fraud, has in England been uniformly held to pertain to a court of equity alone. It is the exercise of an original, independent, not auxiliary, jurisdiction. All equity powers here belong to the court of chancery, except such as are of necessity construed' to pertain to the probate court, to enable it to fulfil the destiny prescribed to it by the constitution. Each court is the creature of the constitution, and each equally the object of its favor, there should be no encroachment upon the jurisdiction of either. It is with me matter of doubt whether the power to vacate an order for fraud can be regarded as necessarily incident to the other powers of the court of probate.
I revere the maxim which Warns us to adhere to decisions. *202But upon a constitutional question, resting on a single case, in which the point does not appear to have been presented or argued, and which is not expressly adverted to in the decision, it may be permitted to me to reserve an opinion, until full argument is had, should the point again arise. And this the more especially, since in this case, according to the • opinion of the court, there are no facts to warrant the exercise of such jurisdiction, even if it exist.
Decree reversed.