Handy, J.,
delivered the opinion of the court.
This was a petition filed in the Probate Court of Yazoo county, by the appellee, for the purpose of setting aside a final settlement • of the appellant, as executor of Canada Cason, in that court, and for a new account.
[589] The material facts necessary to be stated appear to be, that John Oason, died in the year 1836, leaving a will, which was probated by his executor, Canada Cason, by which he bequeathes the greater part of his property to his executor, in trust for John White, Hilary White, James Cason, the appellee, John T. Cason, and Alexander Cason, equally; and in case of the death of either of these legatees before arriving at the age of twenty-one years, without issue, the share of such legatee to be equally divided among the others. Alexander Cason died in his minority, and his share vested in the survivors. The executor returned an inventory, and made and reported a sale of the personal property, and after having made several annual settlements with the Probate Court, he died without having made a final settlement of the estate. The petition alleges that these settlements contain errors, which are prayed to be corrected; and it states that at May term, 1850, the appellant, as executor of Canada Cason, rendered to the Probate Court, an account of the final settlement of John Cason’s estate, which was allowed and approved by order of that court. This account is alleged to be erroneous in many particulars which are specified, and the account and the order confirming and allowing it, are also alleged to be void; because they were made without such notice, either actual or constructive, as was required by law to be given to the petitioner, or to Alexander Cason, the deceased legatee, in right of whom the petitioner claimed an interest in the estate as well as in his own individual right. The ground of this obj ection is stated to be, that at the time at which the account was rendered and allowed, the petitioner, and Alexander Cason, were residents of the State of Louisiana, the latter being a minor and having no guardian; that no citation was personally served on either of them, and that the publication in a newspaper, which was ordered by the court, for the purpose of giving them legal notice, was ordered without any affidavit being first made by the' executor,• showing their non-residence ; and, as to Alexander, that he was a minor at the time, without a guardian, and no guardian ad litem was appointed for him by the court.
The appellant, after an unsuccessful plea to the petition, answered and denied the alleged errors in the annual accounts, and [590] relied on his final account, made and allowed in May, 1850, as a bar to the petition, and insisted on the validity .of the account, and of the order of court in allowing it.
Upon the last hearing of the cause, the court held the final settlement and the order allowing it, to be void, for want of jurisdiction in the Probate Court, and directed a new account to be taken, ascertaining the amount due the petitioner in his own right, and as survivor of Alexander Cason, and appointed. a commissioner to take and report' such account. This account was made and reported, and several exceptions were taken to it by the appellant, which were overruled, and an exception on the part of the appellee was sustained.
The second report made was not excepted to; and for the sum therein stated to be due the petitioner, as an original legatee, as well as that stated to be due him, as survivor of Alexander Cason, the court decreed in favor of the petitioner; and from that decree this appeal is taken.
The first and most important question to bo considered is, whether the order of publication, made by the Probate Court, is void, as to James Cason, under the state of facts appearing by the record ; for if that order was void, the publication made under it cannot have the effect of notice in law to him, and consequently the order allowing the final settlement, would be void, for want of jurisdiction of the person.
The facts touching this point, as they appear in the record, are as follows: — The appellant filed his application in writing, to the Probate Court, at February term, 1850, for leave to make his final settlement, and praying for “ an order of publication, as provided for by law, upon the distributees of the estate of John Cason, deceased, some of whom are non-residents of the State of Mississippi.” To this petition no written affidavit appears to be attached. Upon the petition, it was ordered by the court, at February term, 1850, that a citation issue to the heirs, to appear at the next May term, to show cause why the final account should not be allowed, and that publication thereof should be made in a certain newspaper, for sixty days. The publication was made accordingly; the citation being addressed to “Alexander Cason, James Cason, [591] and Thomas Cason, heirs and distributees of John Cason,” as appears by the record of the court. At the succeeding May term, an order was made, reciting that the appellant had presented his final account for allowance, and that “ the citations to the heirs having been returned executed, and due proof of publication having been made,” the account was examined and allowed.
It was proved, on the hearing of this case, that there was not on file, in the office of the Clerk of the Probate Court, any affidavit of the appellant, or of any other person, showing the non-residence of James Cason, or Alexander Cason, nor any record in that office reciting that such an affidavit had been made; and it was proved by the attorney, who prepared the petition for final settlement, that he did not prepare any written affidavit of such non-residence, and that he had no recollection that such an affidavit was made by Cason, or any one else, or that the fact was in any way proved or sworn to; but that it might have been made and he not recollect it; and he could not say that it was not made.
It was further proved by the Probate Judge, who held that office at the time when the order of publication in question was made, that by the rules of that court, petitions like the one upon which the order of publication in this case was made, are required to be sworn to, and that the uniform practice is, to write them on the petition, or on a separate paper, and file them, among the papers with which they are connected, in the court; that affidavits intended as the foundation of any order or proceeding in that court, are, by uniform practice, made in writing, and filed among its records, and that no departure from it had occurred to his knowledge, except where the affidavit in some cases had been written out, and the clerk, by mistake, had omitted to sign the jurat, which were very rare.
It is insisted, in behalf of the appellee, that, under this state of the case, the order of publication is void, because the record of the Probate Court does not show that any affidavit was made by the appellant, or by any other person, showing the non-residence of the appellee; and that such an affidavit must be proved to have existed as the foundation of the order; otherwise, that the order is without authority, and void.
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Handy, J.,
delivered the opinion of the court.
This was a petition filed in the Probate Court of Yazoo county, by the appellee, for the purpose of setting aside a final settlement • of the appellant, as executor of Canada Cason, in that court, and for a new account.
[589] The material facts necessary to be stated appear to be, that John Oason, died in the year 1836, leaving a will, which was probated by his executor, Canada Cason, by which he bequeathes the greater part of his property to his executor, in trust for John White, Hilary White, James Cason, the appellee, John T. Cason, and Alexander Cason, equally; and in case of the death of either of these legatees before arriving at the age of twenty-one years, without issue, the share of such legatee to be equally divided among the others. Alexander Cason died in his minority, and his share vested in the survivors. The executor returned an inventory, and made and reported a sale of the personal property, and after having made several annual settlements with the Probate Court, he died without having made a final settlement of the estate. The petition alleges that these settlements contain errors, which are prayed to be corrected; and it states that at May term, 1850, the appellant, as executor of Canada Cason, rendered to the Probate Court, an account of the final settlement of John Cason’s estate, which was allowed and approved by order of that court. This account is alleged to be erroneous in many particulars which are specified, and the account and the order confirming and allowing it, are also alleged to be void; because they were made without such notice, either actual or constructive, as was required by law to be given to the petitioner, or to Alexander Cason, the deceased legatee, in right of whom the petitioner claimed an interest in the estate as well as in his own individual right. The ground of this obj ection is stated to be, that at the time at which the account was rendered and allowed, the petitioner, and Alexander Cason, were residents of the State of Louisiana, the latter being a minor and having no guardian; that no citation was personally served on either of them, and that the publication in a newspaper, which was ordered by the court, for the purpose of giving them legal notice, was ordered without any affidavit being first made by the' executor,• showing their non-residence ; and, as to Alexander, that he was a minor at the time, without a guardian, and no guardian ad litem was appointed for him by the court.
The appellant, after an unsuccessful plea to the petition, answered and denied the alleged errors in the annual accounts, and [590] relied on his final account, made and allowed in May, 1850, as a bar to the petition, and insisted on the validity .of the account, and of the order of court in allowing it.
Upon the last hearing of the cause, the court held the final settlement and the order allowing it, to be void, for want of jurisdiction in the Probate Court, and directed a new account to be taken, ascertaining the amount due the petitioner in his own right, and as survivor of Alexander Cason, and appointed. a commissioner to take and report' such account. This account was made and reported, and several exceptions were taken to it by the appellant, which were overruled, and an exception on the part of the appellee was sustained.
The second report made was not excepted to; and for the sum therein stated to be due the petitioner, as an original legatee, as well as that stated to be due him, as survivor of Alexander Cason, the court decreed in favor of the petitioner; and from that decree this appeal is taken.
The first and most important question to bo considered is, whether the order of publication, made by the Probate Court, is void, as to James Cason, under the state of facts appearing by the record ; for if that order was void, the publication made under it cannot have the effect of notice in law to him, and consequently the order allowing the final settlement, would be void, for want of jurisdiction of the person.
The facts touching this point, as they appear in the record, are as follows: — The appellant filed his application in writing, to the Probate Court, at February term, 1850, for leave to make his final settlement, and praying for “ an order of publication, as provided for by law, upon the distributees of the estate of John Cason, deceased, some of whom are non-residents of the State of Mississippi.” To this petition no written affidavit appears to be attached. Upon the petition, it was ordered by the court, at February term, 1850, that a citation issue to the heirs, to appear at the next May term, to show cause why the final account should not be allowed, and that publication thereof should be made in a certain newspaper, for sixty days. The publication was made accordingly; the citation being addressed to “Alexander Cason, James Cason, [591] and Thomas Cason, heirs and distributees of John Cason,” as appears by the record of the court. At the succeeding May term, an order was made, reciting that the appellant had presented his final account for allowance, and that “ the citations to the heirs having been returned executed, and due proof of publication having been made,” the account was examined and allowed.
It was proved, on the hearing of this case, that there was not on file, in the office of the Clerk of the Probate Court, any affidavit of the appellant, or of any other person, showing the non-residence of James Cason, or Alexander Cason, nor any record in that office reciting that such an affidavit had been made; and it was proved by the attorney, who prepared the petition for final settlement, that he did not prepare any written affidavit of such non-residence, and that he had no recollection that such an affidavit was made by Cason, or any one else, or that the fact was in any way proved or sworn to; but that it might have been made and he not recollect it; and he could not say that it was not made.
It was further proved by the Probate Judge, who held that office at the time when the order of publication in question was made, that by the rules of that court, petitions like the one upon which the order of publication in this case was made, are required to be sworn to, and that the uniform practice is, to write them on the petition, or on a separate paper, and file them, among the papers with which they are connected, in the court; that affidavits intended as the foundation of any order or proceeding in that court, are, by uniform practice, made in writing, and filed among its records, and that no departure from it had occurred to his knowledge, except where the affidavit in some cases had been written out, and the clerk, by mistake, had omitted to sign the jurat, which were very rare.
It is insisted, in behalf of the appellee, that, under this state of the case, the order of publication is void, because the record of the Probate Court does not show that any affidavit was made by the appellant, or by any other person, showing the non-residence of the appellee; and that such an affidavit must be proved to have existed as the foundation of the order; otherwise, that the order is without authority, and void.
[592] The first position taken in support of this view is, that the statute is imperative; that when the legatees, heirs, &c., shall he non-residents of this State, “ the executor shall make affidavit of the fact,” in order to have publication made to give them notice of the presentation of his account. Hutch. Code, 682, § 12. And it is contended, that without such an affidavit made by the executor, an order of publication is illegal and void. We do not consider this a correct view of the statute.
The object of the statute was to render the affidavit of the executor sufficient evidence of the non-residence of the parties interested, to authorize the court in ordering publication. It was intended to prescribe that one particular kind of proof should be sufficient, and not to say that any other description of evidence which was competent and sufficient, by the general rules of law, to establish the fact, should not be admitted. The spirit and intention of the statute, doubtless are, that the court should have power to order publication whenever it should be satisfied, by competent and legal evidence, that the parties were. non-residents, and that the affidavit of the executor should be competent for that purpose. And.the word “shall”, must be taken in the sense of may.
It is next said, that in order to give validity to the order, it is necessary to show affirmatively, that an affidavit was made; because the jurisdiction to make the order is dependent upon the showing by affidavit; and the Probate Court being a court of limited jurisdiction, every fact necessary to support the jurisdiction must be shown.
It is true, with respect to courts of special jurisdiction, that all necessary jurisdictional facts must be shown, in order to sustain the jurisdiction. But this rule applies to the question of jurisdiction as to the subject-matter, but not as to the person; for when the jurisdiction, as to the subject-matter, has once vested in a court of special jurisdiction, the rules which govern its exercise, as to the person, with respect to evidence, process, &e., are generally the same as those applicable to courts of general jurisdiction.
In the matter under consideration, there can be no question as to the jurisdiction of the court, in relation to the subject-matter; and the question here raised, then is, must the evidence on which [593] a Probate Court bases its judgment in every case, be shown by the record, in order to give validity to the judgment.
. It is to be observed, that the statute authorizing that court to receive the affidavit of an executor, as the foundation of an order of publication, does not require that the affidavit shall be in writing, or that it shall be made a matter of record. It will also be' observed that the petition filed by the appellant, in order to have a settlement with the court, states that some of the parties interested in the estate were non-residents of the State; that upon consideration of that petition, it was ordered that publication should be made, for the period required by law, to give notice to nonresidents ; that a citation addressed to the parties by name, was accordingly published, and that “upon due proof of publication” the final settlement was afterwards allowed.
Now what was necessary in order to justify the court in granting the application for publication? It was that competent evidence, by the executor’s affidavit or otherwise, should be adduced to show that the parties interested were non-residents. The court upon consideration of the matter made the order, and the record is silent as to the evidence upon which it was granted. But is it, therefore, to be presumed that it was without evidence, and that the judgment is not only erroneous but void ? Quite the reverse. “ There is no principle of law better settled,” says the Supreme Court of the United States, “ than that every act of a court of competent jurisdiction shall be presumed to have been rightly done till the contrary appears. Every matter adjudicated becomes a part of the record, which thenceforth proves itself, without referring to the evidence on which it has been adjudged.” And again, in reference to the proposition, “ that a sale by order of a court of competent jurisdiction, may be declared a nullity in a collateral action, if the record does not show affirmatively the evidence of a compliance with the terms prescribed by law, in making the- sale,” the court says: “We cannot hesitate in giving a distinct and unqualified negative to this proposition, both on principle and authority, too well and long settled to be questioned.” Voorhees v. Bank U. S., 10 Peters, 472, 473.
The validity of the order of publication, therefore, depends [594] entirely upon the question, whether the evidence upon which it was made was sufficient to authorize it; and as that evidence is not stated, and is not required to be stated, the presumption must prevail that the court acted correctly, and upon proper evidence.
The next ground of objection to the order of publication is, that it does not specify the names of the non-resident parties. This is true; and it would certainly have been more regular and formal to state the names of the parties. But' that was a mere order awarding process. The substantial thing was the notice to be published for the benefit of the parties, and that was issued under the sanction of the court. It appears that the citation issued for publication was read in evidence from among the records of the court, and that it contained the names of the parties intended to be notified as non-residents, and that a copy of it was duly published, and recognized by the court afterwards as having been duly published. This is sufficient for all substantial purposes of notice to the parties, who were rightly named in the citation and publication.
Again, it is insisted that the parol evidence introduced at the hearing, showed that the order of publication was made without affidavit of the non-residence.
But this testimony was dearly inadmissible to impeach the order of the court, upon the principles above stated. The object of it was to show that the order was made without evidence, and by that means, to set it aside and render it null.
In taking the steps necessary to confer jurisdiction as to the person, it was unquestionably within the power of the court to decide, whether the evidence was sufficient to establish the fact upon which that jurisdiction depended. And when the order of publication was made, it must be taken, in the absence of all showing to the contrary on the record, that the facts necessary to give the jurisdiction were proved, and that the court acted properly in exercising the jurisdiction. This rule applies as well to courts of limited jurisdiction, as to those of general jurisdiction, when the matter adjudged is within the jurisdiction of the court; and the judgments of such courts are equally incapable of collateral investigation, however erroneous in fact they may be, and are conclusive until regularly reversed. These principles appear [595] to have received universal sanction, and have repeatedly been recognized by this court. Byrd v. State, 1 How. 173; Gildart v. Stark, Ib. 450; Wall v. Wall, 28 Miss. 409.
It was, therefore, incompetent in this proceeding, to show that, the Probate Court acted upon insufficient evidence or without any evidence, in awarding the order of publication, and the testimony introduced for that purpose, cannot go to sustain the decree annulling the final settlement. And it follows, from the foregoing views, that the court below erred in holding the order of publication void, and in vacating the final settlement on that ground; and that that settlement is binding and conclusive as to the rights of James Cason, as an original legatee in the will.
But this view of the subject does not preclude his rights derived from his survivorship of Alexander Cason, under the provisions of the will of John Cason.
It appears that Alexander Cason was a minor, when the order of' publication was made; and that the publication was not addressed! to his general guardian, nor to any guardian, ad litem, appointed, by the court, in behalf of the minor. This is required by the-statute, in order to give notice to the minor, and to charge him in the proceeding, Hutch. Code, 682, § 12; and as no such step was* taken, the publication having been directed to the minor by name, the notice was not sufficient to bind him, and the final settlement must be considered as to him void for want of jurisdiction. And-after the death of the minor, it was competent for the appellee claiming his interest in the estate as his survivor, to treat the final settlement as not binding upon him, and in virtue of his right-to require another account to be made.
It, therefore, becomes necessary to examine the grounds of error-complained of by the appellant, in the account which was taken under the order of the court after the final settlement was sét aside..
The first objection taken is to the rule held by the court, upon the exception of the appellee, in relation to interest in cases of' partial payments. The rule held by the court was, that where partial payments were made by the executor, the sum paid should first be applied to the interest, and the surplus after discharging the interest, should be applied to the principal. This is the rule [596] established by the statute in relation to contracts for the payment of' money, (Hutch. Code, 643, § 57,) which is but an adoption of the rule of equity upon the subject. Stoughton v. Lynch, 2 Johns. Ch. R. 210. There is, therefore, no error in this respect.
The second objection is, that the court erred in overruling the appellant’s exception to the account reported by the commissioner, on the ground that the appellant was therein charged with interest at the rate of eight per cent, on the amount of sales of the property of the estate.
It appears that the executor, without authority, undertook to loan the notes in his hands belonging to the estate. It does not appear that there was any necessity for such a step; and it can be regarded in no other legal view, than as an appropriation of the money to his own use; and in that case, he was clearly liable for interest. Kerr v. Laird, 27 Miss. R. 544. And the rate of interest allowed by the commissioner was that allowed by law at the time of the appropriation.
The next objection is, that the appellant was charged with money due on two notes belonging to the estate, made by Pease and Hunter, and which he was unable to collect.
It appears by the evidence, that these notes were loaned by the executor to other persons, in whose behalf judgments were obtained on them, and these judgments were in part unsatisfied. It does not appear that any timely efforts were made by the executor to collect them by suit, or by enforcement of the statutory lien against the property, for the purchase of which they were given. On the contrary, it appears that he loaned them, without legal authority, to other persons; and that is sufficient to make him liable for the money due thereon; unless it be made to appear that, by the use of the greatest diligence, the money could not have been collected or secured by any legal means; and such diligence is not shown here.
Another objection is, that the appellant was charged with interest upon the proceeds of the sale of some bales of cotton, from November, 1836, the time at which the money was received.
It appears that the executor had rendered no account of this •money, either in his annual accounts or in his final settlement; [597] and no necessity or justification is shown for his retaining it in his hands, unaccounted for, so long a time. All benefit of it in the meantime was lost to the estate; and it is but just that it should be considered as having been applied to his own use. Under the circumstances, we think that he was properly charged with interest.
The only other objection is to the disallowance of a small sum of money paid by the executor to one Gorman. So far as we are able to understand this claim from the record, it does not appear to he a legal charge against the estate, and the evidence was not sufficient to entitle it to allowance.
Having thus examined the several questions presented for our consideration, we are of opinion that, as to the claim of the appellee as an original legatee, the decree setting aside the final account and settlement of the appellant, is erroneous, and should be reversed; but as to the claim of the appellee, in right of Alexander Cason, the account and final settlement were properly set aside by the decree; and also that there is no error in the rulings of the court upon the exceptions in the cause.
The decree is reversed, and the cause remanded, to be proceeded with in conformity to the rules herein declared.