Heydenfeldt, J.,
delivered the of the Court—Murray, C. J., and Terry, J., concurring.
1. From the framework of our various acts concerning estates and public administrators, it must be deduced that the commission of the public administrator, as a public officer, stands in the place of letters of administration, and that, consequently, it is unnecessary to issue them, in order to give him control over the property of the estates which come to his hands.
2. The question which arises upon the next error assigned, which I will consider, is whether, after the allowance of a claim, by the administrator and Probate Judge, afterwards, upon an application to sell the real estate, to pay debts, the heir can dispute the validity of the claims allowed.
It is said, against this proposition, that the allowance by the Probate Judge is a judicial act, and gives the claims the force of a judgment. This may not be denied, and yet, a judgment is of no force, except as between parties and privies. This being the general rule, a fortiori, it should be applied in cases like this. For after the allowance of the claim by the administrator, the allowance by the Judge is ex parte, for there is no one to contest.
A judgment at common law was no evidence in an action against the heir, and I apprehend that the petition to sell the real estate of an intestate is the substitute, under our system, for the action against the heir. The latter is required to be cited, and allowed to be heard, and it would be singular if he was concluded, by proceedings to which he was no party. A statute will not be construed so as to make its important provisions, to secure the rights of a party, vain and illusory.
[229]*229It is insisted that our system, is different from the English, because it allows the administrator to take possession of the real estate, as well as the personal. This, however, is only that he may receive the rents and profits until the administration is concluded ; the law does not make the real estate descend to him, as in the case of personalty. By the common law, the real es-state is the heir’s, the personal estate the administrator’s, and this rule is not altered with us, except so far as regards the temporary custody of the realty; the inheritance is not affected. True,"the administrator may sell it, but this can only be by suit against the heir, as I have already indicated, by the proceedings in the Probate Court, and under its decree.
It is again argued that a claim thus allowed has only judicial standing in the Probate Court because it is beyond contest, that when contested the suit must be brought in the District Court, which cannot be done until disapproved by the administrator, or Judge, and hence the result is deduced that the Probate Judge must stop with the determination that the approval is no evidence of indebtedness against the heir, and must refuse to enter an order of sale because the heir objects. The argument is faulty in supposing that no order of sale can be entered because the heir objects. It is not simply an objection to the sale which the heir institutes; it is an objection to the validity of the claim; it is upon that that he has a right to be heard, and that, of course, must be determined. It amounts simply to a re-examination of the claim, to test its validity as against the heir, and to produce or prevent a decree for the sale or the land. If the claim is not valid, then, of course, the land ought not to be sold.
Nor is the creditor deficient in any remedies which may be necessary for the establishment of his rights. If issue is joined upon the truth of his claim, he may have it tried by the Probate Judge, or certified for trial by jury to the District Court; and in either case he would have an appeal to the tribunal of last resort, and if successful in establishing the validity of his demand, the order of sale would be made, and be paid in the due course of admini stration.
This view also disposes of the objection, that the Statute of Limitations may produce a bar between the time of the approval of the claim and the contest with the heir. It does not lose its effect as a judgment against the administrator, and would not be barred unless time enough has run to bar a judgment.
Our conclusion is, that the Probate Court erred in refusing to allow the heir to contest these claims, and therefore the decree is reversed and the cause remanded.
Petition for rehearing having been granted, Burnett, J., at the present Term, delivered the opinion of the Court—Terry, J., concurring.
[230]*230This cause was argued and decided at the last October Term, of this Court, and the judgment of the Probate Court of the county of San Francisco reversed. A petition for a rehearing was filed by defendant’s counsel, and the rehearing ordered at this Term of the Court. The ease was again argued and again submitted.
The great importance of this case, as involving the more prominent features of our probate system, and the industry of counsel in citing numerous authorities on both sides of the question, impose upon the Court a greater amount of labor than is usually necessary. While it will be impracticable to notice all the authorities cited by counsel, and all the questions raised by the record, it will be proper to examine somewhat in detail, the principal points arising in the case.
The first question is this : was Flower administrator upon this estate ?
It is insisted that he was administrator, upon two grounds:first, as public administrator by virtue of his office, and second,by reason of the grant to him, of administration by the Probate Court.
The first ground involves the rights and powers of public administrators, and will require some examination. In considering this point, it would seem safe to assume that all the provisions relating to the powers and duties of the public administrator, and inconsistent with the general probate law, are special provisions, and must be given their full force; leaving all the other provisions of the general probate system as much applicable to him, as to any other administrator. That he has official powers, and is an officer of the law, is plain from these special provisions. But, it is equally clear, that he has only such powers as are given him by law. The public administrator is required to give bond and take the official oath; and it would seem to have been the intention of the statute to dispense with the bond and oath required of other administrators in each particular case.
But the question arises, whether administration must be granted to the public administrator by the Probate Court, upon each particular estate. This question is one of more difficulty; and to ascertain the intention of the statute, it is necessary to construe all of its provisions together, so as to give force and eifect to all, if possible.
By the provisions of the fifty-second section, the public administrator is entitled to the grant of administration when there are no next of kin; and by section sixty-four, the provisions of which are general, ho would be equally entitled to administration, although there were persons preferred before him, upon their failure to apply; and putting all these provisions together, it would seem clear, that he is entitled to administration upon all estates not otherwise administered.
[231]*231The provisions of the fourteenth chapter are somewhat ambiguous, and the meaning obscure. By section throe hundred and four, when a stranger, or person without known heirs, dies in the house, or on the premises of another person, such person shall give notice to the public administrator; and by section three hundred and five, he shall make an inventory of such estate, according to the law prescribing the duties of administration, subject to the control and direction of the Probate Court. In terms, the provisions are limited to cases where a stranger dies in the house, or on the premises of another. The intention, however, would seem to be, that the public administrator should, at once take possession of the estate of all persons dying without known heirs; for the reason, that in such cases, there being no one interested to take care of the estate, there would be danger of immediate loss; and after taking such possession, he must proceed under the general law and the other provisions of that chapter. The effect is to give him temporary possession of the property, leaving him to obtain regular administration from the Probate Court. This view is sustained by the eighty-eighth section, which has reference to special administration, and by which the Court is authorized to “direct the public administrator to take charge of the estate.” The phrase, “take charge of the estate,” is qualified by the scope of the section, and only means to give the public administrator the same powers over the particular estate, as he would have over the class of estates referred to in the fourteenth chapter. And the fact, that this eighty-eighth section refers to the public administrator, in connection with a special administrator, and authorizes the Court to order him to take charge of such estate, is strong confirmatory evidence that the provisions of the fourteenth chapter refer mainly to the duties of the public administrator before the regular grant of administration to him.
The true result would then seem to be this: Under the fourteenth chapter, the public administrator is authorized at once to take possession of a certain class of estates, without any pi'ior appointment of the Probate Court, but still subject to its direction and control; and under the provisions of the eighty-eighth section, he may be required to take charge of other estates in the same way; but in both cases, he holds as special administrator, and equally subject to the direction of the Court. The appointment, under the eighty-eighth section, is without notice, and the public administrator takes possession without notice; and the reasons for one are substantially the same as for the other. By examining the provisions of the fourteenth chapter, prescribing specially wrhat the public administrator must do, and excluding from consideration those provisions which refer to the general act, it will be seen what a strong resemblance there is, substantially, between these special provisions and those of the ninety-[232]*232second and other sections relating to a special administrator appointed by the Court. They both have the power to sue, to take possession and care of the assets, and, upon the granting of administration to another, they are equally required to deliver the estate to him, while neither of them can pay the debts due from the estate.
The fifty-second section provides that “ administration shall be granted,” in a certain order, and among the persons entitled is the public administrator; and this refers to regular administration. Administration is then granted by the Probate Court to the public administrator upon the failure of the next of kin. Is, then, the granting of this regular administration a judicial act ? If so, then the Court must decide the facts and the law which entitle the public administrator to the grant of administration, as well as the facts and law in other cases. Whether the public administrator has the right to administer upon the particular estate, must be decided by some one, and that tribunal must be the Probate Court. That Court must decide the jurisdictional facts which must exist in all cases.
In reference, then, to the right of the public administrator to take immediate possession of any particular estate which he decides comes within the three hundred and fourth and three hundred and fifth sections, it would seem to be in virtue of his office; and in case he errs, and takes possession of a particular estate upon which he cannot administer regularly, then he must deliver over the assets to the regular administrator, under the three hundred and sixth section; and when regular administration is granted to him, and afterwards it shall be discovered that another person is entitled to administration, then, under the three hundred and eleventh section, the Court, at any time, may order the delivery of the assets to the person entitled.
The public administrator is not entitled to administer upon every estate, nor even upon the majority of estates, and there must be a judicial grant of administration to him in each particular case, and his commission, therefore, cannot prove that he is the regular administrator upon the particular estate; nor can the law intend that in each case where his authority is called in question, he shall be compelled to prove, by independent testimony, the particular facts which entitle him to administration in the particular case. In reference to the fact of administration in each particular case, he must show a grant of administration, like any other administrator. And it is no objection to this view, that the public administrator is required to perform some additional functions, after regular administration granted to him, and which other administrators are not required to do. By the three hundred and twelfth section, he is required to render a yearly account to the county auditor; and by the second section of the act of May 18,1853, Comp. Laws, 849, he is required to settle with [233]*233the county clerk on the first Monday of each month. The reason of these provisions is this: The State is entitled to the estates of deceased persons, dying intestate without heirs, after the payment of debts; and it is upon that class of estates which escheat to the State that the public administrator is entitled to a grant of administration from the Probate Court. And by the second section of the amendatory act of 1855, he is required, after final settlement, to pay to the county treasurer, who is required to pay into the State treasury.
The second ground upon which defendants insist Flower was administrator, namely: the grant of administration by the Probate Court, involved the solution of several very important points.
The application for letters of administration must be in writing, signed by the applicant, and must state the facts essential to give the Court jurisdiction of the case. The jurisdictional faets in this case, were the death and residence of the deceased. The words of the statute are, that “administration shall be granted, first, in the county of which the deceased was a resident at or immediately previous to his death, in whatever place his death may have happened,” etc. The other cases mentioned in the second and third divisions, refer to non-residents of the State. The meaning of this provision is, that administration must be granted in the county of which the deceased was a resident at the time of his death; and the words “ or immediately previous to,” must be considered as mere surplusage. A man cannot reside at two places at the same time, and unless the intention was to allow two administrations to be granted, the statute must receive the construction given.
Flower in his petition described the deceased as “late a resident of San Francisco County,” and it was objected that this was not sufficient, as it did not follow the words of the statute. But this objection would not seem to be fatal. There is no provision of the statute requiring the very words of the law to be used, as no precise form of petition is given. In such cases, though always safe to follow the words of the statute literally, it is not absolutely necessary, but equivalent words will answer. And from the authorities cited by defendant’s counsel, the term “ late ” would seem to be full as strong as the words of the statute. In the connection in which it is found, the evident meaning is that the deceased was last a resident of San Francisco County.
In the case of Fisk et al. v. Norvill, 9 Texas R., 13, it was held that the words “pendente lite” were substantially the same as the words pro tern.—the words of the statute.
The next objection is that the Probate Court did not acquire jurisdiction of the parties by giving the notice required by the statute. The statute requires “ notices to be posted in at least three public places in the county, one of which shall be at the [234]*234place where the Court is held.” The affidavit of Lyons stated he had posted the notices in three “ different places.” The sixty-third section provides that “ an entry in the minutes of the Court, that proof was made that notice had been given according to law, shall bo conclusive evidence of the fact of such notice.” The entry in the minutes was that “ on due proof of posting notice of the time and place of hearing having been made,” etc. This entry would not seem to be a compliance with the statute; it is not in the language of the statute, nor is it substantially the same in meaning. It is confined to “ due proof of posting notice of the time and place of hearing,” when •the statute required the notices to state the “ name of the deceased, the name of the applicant, and the term of the Court at which the application will be heard.”
It is also objected that while the Probate Court made a proper order directing letters of administration to issue to Flower, the clerk never issued them, and that consequently Flower never had any right to act.
In answer to these objections, the counsel for defendant insists, among other things, that “ the allegations in the petition gave the Court jurisdiction, and it makes no difference whether the facts be true, as alleged, or not; the fact of residence is a jurisdictional fact in pais, and the Court necessarily passes upon and adjudicates such facts, and its decision, right or wrong, is conclusive in a collateral proceeding.”
This position is certainly broad, and stated in strong and clear language. The authorities referred to, so far as accessible, have been examined, and a portion of them would seem to support the position taken. The principal eases and those most to the point, are those of Grigan’s Lessee v. Ashton et al., 2 How. U. S. Rep., 338, and Leonard v. Leonard, 14 Pick., 283.
In the ease from Howard, the language of the Court, more than the facts of that particular case, would go to support the ground taken by counsel. In that case, it is substantially assumed that the allegations in the petition give jurisdiction, and “ if the petitioner presents such a case in his petition, that on a demurrer the Court would render judgment in his favor, it is an undoubted case of jurisdiction; that any movement of a Court is necessarily the exercise of jurisdiction.” In this case, the legality of a sale of land made by an administrator under an order of Court, was brought in question in a suit by the heirs against the purchaser to recover the land. The first section of the law of Michigan, passed in 1818, authorized the Supreme Judicial Court, or the County Court, to order the sale upon the application of the administrator, and -without any notice to parties interested. In this vital respect, the case differs essentially from the case before this Court.
In the case of Leonard v. Leonard, the plaintiff had been de[235]*235dared non compos 'mentis by the Probate Court, and a guardian appointed. After the appointment of the guardian, the plaintiff transacted some business, and the validity of that transaction was called in question. The defendant offered to prove that plaintiff was of sound mind at the time of the transaction. The Court held that the Probate Court had jurisdiction—had decided that point—and that its decision could not be called in question, except by proceedings in that Court.
This case would certainly seem, at first view, a strong authority in support of the position taken. The facts that gave the Probate Court jurisdiction of the ease and person, were the statements made to the Court, and the residence of the alleged lunatic in West Springfield. The question, whether the plaintiff was a lunatic, was, therefore, not a question of jurisdiction ; it was not proposed to show that the jurisdictional facts did not exist, but that the Court erred in its judgment, after gaining full jurisdiction of the case. But whatever may be the principle decided in that case, the current of authority of that State is against the position of the defendant’s counsel.
In the case of Schneider v. McFarland, 2 Comstock, 459, the learned judge reviews the case of McPherson v. Cunlief, 11 Serg. & Ilawle, 429, and Grigan’s Lessee v. Ashton, and distinguishes them from the case before the Court, and from the ease of Bloom v. Burdick, 1 Ilill, 130. The latter case, which is a leading case in Hew York, and was decided by Judge Bronson, was an action of ejectment, and involved the validity of a surrogate’s sale of real estate. In that case, it was held, that “ though the surrogate, by presentation and account, acquired jurisdiction of the subject-matter\ he did not aver the persons to be affected; and the latter is as essential to the validity of the sale as the former,” and that “ no one can be c-ondemcd or divested of his rights, until ho has had an opportunity in some form of being heard; as by serving process, publishing notice, appointing a guardian, etc., and, if judgment be rendered against him before that is done, the proceeding will be utterly void.” It was, also, held, that the Surrogate's Court was one of inferior jurisdiction, and apart}' seeking to maintain title under its proceedings, must show affirmatively that it had jurisdiction. In the case in 2 Corns., 459, the doctrine of the case of Bloom v. Burdick is expressly affirmed. The learned Judge says: “If, however, the adjudication in other states, to which reference has been made, conflicts with that of Bloom v. Burdick, which is not the case, we should, notwithstanding, adhere to 1 hat decision. Public policy demands that the safeguards ■which the Legislature has provided for the protection of the helpless against negligence, oppression, and fraud, should be maintained.” In the case of Ilalyoke v. Haskins, 5 Pick., 20, which was a writ of light, wherein the demandant claimed title [236]*236to certain lands, it was held that the administrator’s sale was void. Justice Wild, in delivering the opinion of the Court, said :
“ The principal points made in this case were settled, and, we think, rightly settled, in the case of Cutts et al. v. Haskins, 9 Mass., 543. On the same facts now disclosed, it was decided, that the domicil of Silence and Sarah Elliott, at the time of their decease, was in the town of Natick, in the county of Middlesex; that the power of granting administration of their estates, appertained exclusively to the Judge of Probate of that county, and consequently, that the grant of administration by the Judge of Probate for the county of Suffolk, and the subsequent proceedings thereon, were merely void; that the proceedings and judgment of a Court not having jurisdiction of the subject-matter depending, are coram nonjudice, and void, is a position too well established to be controverted.”
And this seems to be the doctrine, settled by the current of decisions in New York, Massachusetts, Maryland, Indiana, Illinois, and Mississippi. The decision in Pennsylvania, (11 Serg. & Rawle, 428, 430,) arose under a peculiar statute of 1764, and is not opposed to the view we have taken. But in the case of Messenger v. Xitner, 4 Binney, 97, the doctrine is sustained in a case where the statute required the parties to be brought in. So in Texas.
The preponderance of authority would seem to be clearly against the position of defendant’s counsel. No case, it is thought, can be found, where administration was granted by a Probate Court of the wrong county, however regular may have been the proceedings, and those proceedings sustained anywhere, even when collaterally called in question.
The reason upon which this doctrine rests would seem to be ample. It is the object of the law, that administration should never be granted until the death of the person, and then only one administration within the State. The law is compelled to adopt some rule for determining when this grant shall be made; and as the deceased could not have been a resident of two or more counties at the same time, the law makes his residence, at the time of his death, the test by which to determine the place where the grant should be made. These two facts must be alleged in the petition, and they must also be true in point of fact; and when they do not both exist in point of fact, the proceedings are utterly void and not voidable; and the decision of the Probate Court upon these jurisdictional facts, is not conclusive upon any one not actually before the Court, because the Court can compel no one to appear before it. The heirs and creditors are bound to know when and where the deceased died; and they are presumed in law to know this, as they are the parties interested in the estate. When, therefore, the death has occurred, and the Probate Court of the proper county gives pro[237]*237per notice, the heirs and creditors are hound to know the proceedings. But parties interested are not bound to know anything of the proceedings of a Court that has no jurisdiction, because the facts giving jurisdiction do not exist. The persons interested cannot be required to watch the proceedings of all the Probate Courts of the State, at all times. These proceedings are summary and special, and must be in strict conformity with the law. It is apprehended that no one would insist that a grant of administration before the death of a person, however regular, could be sustained anywhere; 9 Texas B., 13. “ The decision of the Probate Court, that the man was dead, would certainly not be conclusive against him and the fact of residence is of equal importance to give the particular Court jurisdiction, and the decision of one point is no more conclusive than the decision on the other.
That our statute intended, not only that the jurisdictional facts should actually exist, but that proper notice should then be given to bring the parties before the Court, in order to give it jurisdiction, would seem to be clear from its own language, which is exceedingly simple and precise. The statute prescribes what facts the petition and notice shall contain, and the manner of giving notice, and the time; and then in the sixty-third section specifies how an entry may be made in the minutes/ so as to be “ conclusive evidence of the fact of such notice.” The sixty-second section says: “ It being first proved that notice had heen given according to law.” If giving notice was not necessary to give the Court jurisdiction, then this particularity would not have been observed.
The defendant, however, insists that sufficient notice was in fact given, but conceding there was an informality in the affidavit of Lyons and the entry in the minutes, these defects were cured by his notice. It would seem competent for the Court when proper testimony was in fact given, and the proof merely defective, to receive another affidavit of Lyons, and file the same nunc pro tunc.
If, then, the decision upon the jurisdictional facts can be questioned in a collateral proceeding, it can the more readily be questioned in a direct suit in the same Court. In the case of Munson v. hfewson, 9 Texas Bep., 109, the appointment of a guardian by the Chief Justice of any other county than that of the minor’s residence, was held to be absolutely void; and it was also decided that the Court had jurisdiction to declare null and void its own proceedings in a case in which it had no jurisdiction in the first instance; and in the case of Miller v. Miller it was held, that when the proceedings of the Probate Court were void for want of jurisdiction, the limit prescribed within which it may be revised and corrected in the District Court does not apply.
The objection that no letters of administration were granted, [238]*238does not seem to be so vital as to render void the subsequent acts of Flower, conceding they were otherwise valid. It would seem that the statute intended that the public administrator should procure letters in each particular case. There is nothing in the special provisions applicable to the duties of public administrator, which renders the general provisions in reference to letters inapplicable to Mm. It would seem clear that a grant of administration must be made by the Court to him in the particular case, as well as to others, and therefore the letters would be equally required. But as the Court made a regular order that letters should issue, and as no bond or oath was required as a condition precedent, the omission to issue the letters is not fatal.
The next question is, whether the heirs of Beckett had the right to go behind the allowance of the claims by the administrator and the approval of the Probate Judge, and require proof of the original indebtedness ?
The decision of this question will turn mainly upon the character of our peculiar statutory probate system, and the decisions of the State of Texas, where the same provisions exist relative to the mode of establishing claims against the estate. The common law differs so much from our system in most respects, that we can draw but few analogies from it, in illustration of this particular question.
At common law, the real estate of the intestate vested in the heir, and the personal estate in the administrator; but under our system the true theory would seem to be that both the real and personal estate of the intestate vest in the heir, subject to the lien of the administrator for the payment of debts and the expenses of administration, and with the right in the administrator of present possession. This lien he must enforce by the judgment of the Court, and he must first enforce it against the personal estate. But his right to enforce it against both is equally clear, and the law only requires the sale of the personal estate in the first place, for the same reason that it is so directed in the case of an execution issued upon a judgment. This is the case in the State of Texas by statute, which is only declaratory of the legitimate result of their probate system, (Hartley’s Digest, Art. 1221,) and this would seem to be the clear result of our system.
If the title of the property of the intestate vested in the administrator it would be necessary for him, in the case of real estate, to execute conveyances to the heirs after final settlement. And it is no objection to this view, that under these probate sales, when properly conducted, the title of the purchaser comes from the ancestor, and not from the heir. The lien of the administrator is created by the act of the ancestor in creating the debt, and is paramount to the right of the heir. The heir takes by descent, the administrator gets his lien by virtue of prior con[239]*239tract. This contingent lien every man creates when he contracts a debt, and upon his death the lien attaches to all his property. The administrator is more the representative of the creditors than of the heirs. In all suits for the benefit of the estate he represents both the creditors and the heirs; and in proceedings to sell property, he is not the sole representative of the estate, but the moving party in behalf of creditors. 2 Com-stock, 462.
It is insisted by defendant that the allowance of a claim by the administrator, and its approval by the Probate Judge, has the force and effect of a judgment, and binds the heirs so that they cannot call it in question, except upon the gound of fraud.
There is no doubt but that the allowance and approval of the claim is a quasi judgment, binding as between the actual parties. “ The approval of the account after it has been admitted by the administrator, is a judicial act, a quasi judgment, and so far affects the rights of the parties as to prevent any further investigation in that Qourt.” Neil v. Hodge, 5 Texas Rep., 489. It is also held in that State, that the Probate Court cannot try any controverted fact as to the indebtedness or the amount. 7 Texas Rep., 626-9. These positions are all fully sustained by the decisions of the Supreme Court of Texas. 9 Texas Rep., 518.
But it is well settled in that State that this quasi judgment is not conclusive against the heir, but he may go into the District Court and institute original proceedings to set it aside. In the case of Moon v. Hellebrant, the claim was barred by the Statute of Limitations, and the heir sought to set aside the allowance pending an appeal in the District Court, from an order of sale by the Probate Court. The Supreme Court decided that as the Probate Court had no jurisdiction to review its own decisions, the District Court could not take cognizance of such a question on appeal, but that the proceedings should be commenced in the District Court. 14 Texas Rep., 312; 11 Texas Rep., 110.
The effect of this quasi judgment is to prevent any revision of its own judgments, upon the ground that controverted facts as. to the debt or its amount, cannot be inquired into in the Probate Court, but the heir is required to go to the District Court for relief. The decisions of that State in regard to the mode in which the heir must seek relief, are predicated upon their judicial system and the provisions of their statutes. By the Constitution of that State, the judicial power is vested in “ one Supreme Court, in District Courts, and in such inferior tribunals as the Legislature may establish,” and “ the District Court shall have original and appellate jurisdiction and general control over the said inferior tribunals, and original jurisdiction over executors, administrators, guardians, and minors, under such regulations as may be prescribed by law.” Art 4, § 15. When cases are appealed to the District Court from the Probate Courts, the trial is de novo, [240]*240upon the minutes. Hart's Digest, Art. 718; 9 Texas Rept., 300. There is no provision of the Constitution, or statute, it is believed, which authorizes the making up of issues in the Probate Court to be tried in the District Court.
If, then, the position of the defendant be conceded, for the sake of the argument, that this quasi judgment could not be revised by the Probate Court, even on the application of the heir, who had never been actually before the Court, what would be the legitimate result under our system ? This Court held, in the case of Smith v. Andrews, decided at the last October Term, that “ Probate Courts are of inferior and limited jurisdiction, and in pleading their judgments it is necessary to set out the facts which gave jurisdiction." This Court has decided that the District Courts have no appellate power over the Probate Courts, and when the District Courts try issues sent from the Probate Court, the jurisdiction exercised is original. 4 Cal. Rep., 342. This Court has only appellate power, and cannot hear testimony. If, then, the heir wishes to contest this quasi judgment, when or how is he to do it ? He can appeal to this Court, but upon appeal he cannot go behind the quasi judgment, if regular on its face. It is not perceived how he can obtain any relief upon a claim once allowed, except as to errors apparent on the record, and it is apprehended that no sort of proceeding would enable him ever to reach the alleged facts in pais, whether “ true or not,” “ right or wrong,” if the position of the defendant’s counsel be correct.
But is it true ? Has our system provided no remedy ? If not, it must be very defective. From a careful consideration of our whole Probate system, it would seem clear that the Constitution gave the District Court jurisdiction over issues from the Probate Court, without limit, on purpose to afford all parties interested a cheap and simple mode of litigating disputed questions. It would seem also true, that the general probate law intended to provide a speedy and cheap mode of settling up estates, while at the same time the rights of all parties interested are secured. The action of the administrator and the Probate Judge will practically settle the great majority of cases; but their summary and ex parte action will not be conclusive upon parties who have not had the means of contesting it. After he has allowed claims and proposed to sell property, it is then that the heirs are called in to see what he has done, and to contest the claims allowed, if he choose to do so. This is giving them that “ day in Gowrt,” without which no man can be rightfully deprived of his property. If the heirs are ever permitted to contest the claims allowed, there can be no more appropriate time and no more appropriate mode than those contemplated by the law. The language of the act is general, and does not restrict the right of the heir to any particular objection, but leaves him to make any showing that will defeat the sale, in whole or in part; and one of the best ob[241]*241jections against the sale, is that the claims are unjust; and the very fact that the statute has made such careful provision for bringing in the heirs by personal service upon them, shows that to have been the true intention of the act.
It would seem that this view is supported by every principle of justice. It must be conceded that the negligence, favoritism, and fraud of administrators should be carefully watched. The administrator has no interest in preserving the estate for the heir; if claims are improperly allowed he suffers no loss; if he permits his private friendships or obligations to influence him, his property is not affected, and the check upon his action in allowing claims should be practical and efficient. It is true the Probate Judge must also approve the allowance, but this a very weak check, because the Judge has no means and no opportunity to know the facts of each case. If the allowance is regular on its face, the Judge seldom looks beyond, and not always even that far.
The books are full of cases showing the extreme negligence of administrators and Probate Judges; claims have been allowed and approved, which were barred by the Statute of Limitations, and this was apparent upon their face, and yet neither the administrator nor the Probate Judge had discovered the fact. It is peculiarly the duty of the Probate Courts to protect the rights of the helpless and innocent. The infant heirs have usually no one to speak for them—no one to watch the administrator—and when they are called into Court, they should be allowed to question the justice of the claims approved. These claims are often apparently of a very doubtful character and need examination, and it is no hardship on the creditor; he has not been put to the expense of a regular suit, and if lie is required to prove his claim in a regular way, he cannot complain any more than the creditor whose claim was not allowed by the administrator in the first instance.
As to the question raised in argument, in regard to the Statute of Limitations, it is unnecessary to make any express decision, but we may remark, as a matter of opinion, that the presentation of the claim to the administrator is the commencement of a suit upon it, and is sufficient under our statute to stop the running of the statute. The true ground upon which the heirs can question the allowance and approval of the administrator and Judge, is that they are by our system only brought into the case at a certain stage of it upon petition and notice. The previous acts of the administrator and Probate Judge must occur before the heirs can contest the claims, and on proceedings in the same case as much as the subsequent proceedings.
It is unnecessary to decide the other questions raised by the record. We think the Probate Court erred in refusing to hear testimony to prove that the deceased was not a resident of the [242]*242county of San Francisco, and also in not permitting the heirs to question the justice of the claims allowed.
"W e, therefore, cannot disturb the former decision of this Court.