Peyton, C. J.,
delivered the opinion of the court:
It appears from the record in this case, that Joseph Gr. Caraway as administrator of the estate of Benjamin Sherrod, deceased, entered into bond with O. C. Tate, R. Sherrod and L. W. Smith as his sureties therein, for the faithful administration of said estate. That after a partial administration of the estate, the said Caraway died, and Lewis Stone became his administrator, who made a settlement of his intestate’s account as administrator of the estate said Benjamin Sherrod; and upon said settlement, the estate of of the said Caraway was declared to be due and indebted to Joseph Everett, one of the heirs of the estate of the said Benjamin Sherrod, the sum of $109.67, which was decreed to be paid to him as his distributive share of said estate.
The said Joseph Everétt filed his bill in the chancery court of Noxubee county, alleging the above stated facts, and also that no assets of the estate of the said Caraway ever came to the hands of his administrator, who resides in the state of Alabama, and that the estate of said Caraway is wholly insolvent; that R. Sherrod, one of the sureties on the administration bond of the said Joseph Gf. Caraway, is deceased, and no administration of his estate has been had. That said sum of money remains due and urpaid to the complainant, who prays in his said bill that upon a final hearing of the cause, the said C. O. Tate and L. W. Smith, as suretieshrpon said administration bond, may be ordered and decreed to pay to the complainant the said sum of $109.67, found due him upon settlement as aforesaid, for his distributive share as one of the heirs of the said Benjamin Sherrod, deceased.
To this bill of complaint, one of the defendants, L. W. Smith, filed a demurrer, alleging among others, as causes of demurrer, [579]*579the want of equity on the face of the bill, and that there is a full and adequate remedy at law. The demurrer was overruled by the court, and hence the cause is brought to this court by the said L. W. Smith, who assigns for error the action of the court below in overruling the demurrer.
This ease presents the important question for our consideration, whether under our system of jurisprudence, a court of chancery can entertain jurisdiction, and give relief against sureties on the administration bond, for the breaches of the condition thereof by the administrator in the maladministration of the estate. And in the decision of this question, it becomes necessary to inquire into the powers and jurisdiction of the court of chancery under our present constitution.
The 16th section of the 6th article of the constitution provides, that chancery courts shall be established in each county in the state, with full jurisdiction in all matters in equity, and of divorce and alimony; in matters testamentary and of administration; in minors’ business and allotment of dower, and in cases of idiocy, lunacy and persons non compos mentis. From this, we see that, the constitution confers upon the chancery court full jurisdiction of all matters in equity, and equity is defined to be that ^system of justice which is ádministered by the high court of chancery in England in the exercise of its extraordinary jurisdiction. Bispham’s Principles of Equity, 1. Upon reference to the history of that court in England, it will be seen that it consisted of two distinct tribunals : the one, ordinary, being a court of common law ; the other, extraordinary, being a court of equity. The ordinary branch of that court constitutes no part of the jurisdiction of the court of chancery here.
In England, the administration of estates of decedents belonged to the ecclesiastial courts, and in this country the jurisdiction over the administration of the estates of decedents is conferred upon courts of probate, surrogate or orphans’ courts, which, in general, possess the powers of the ecclesiatical courts in England upon the [580]*580subject. Proper means^are provided to compel the executors and administrators to collect the assets, to settle proper accounts, and to satsify the claims of creditors, legatees and distributees. But it sometimes happens, that in order to the relief required, other remedies than those which are incident to the procedure in these tribunals, are necessary, in which case a resort to chancery becomes unavoidable. Thus, a bill may be filed by a creditor to subject real or personal property, frauduently disposed of by the decedent in his lifetime, to his debts. Pharis v. Leachman, 20 Ala., 662, and Hagan v. Walker, 14 How., 29. Or to follow assets which have passed into the hands of legatees or distributees, where the remedies against the executor or administrator have been exhausted. Ledyard v. Johnston, 16 Ala., 548. And in some other instances, the equitable remedy has to be invoked in order to meet cases which cannot be properly dealt with in other tribunals.
It has been sometimes said that an executor or administrator bolds the assets in the character of a trustee, and that the jurisdiction of equity attaches on the existence of a trust. It is true that in one sense, an executor or administrator may be called a trustee, as any man may be so called who is bound to apply property for the benefit of others ; but he is not a trustee in the technical sense, so as to give a court of equity jurisdiction on the ground of trust alone.
Judge Story says, that much of the English doctrine in regard to the extent and the foundation of equity jurisdiction, in matters affecting the settlement of estates, has no application to many of the American states. The courts of probate in this country have ample powers, both in the extent of their jurisdiction and their mode of procedure, for the accomplishment of the principal objects, upon the attainment of which the English equity jurisdiction, in such matters, is founded. Hence, in this country, courts of equity do not ordinarily interfere in the administration of estates. 1 Story’s Eq., sec. 543.
[581]*581Prior to the adoption of the present constitution, the administration of estates of decedents pertained almost exclusively to the courts of probate, which were governed by a system of laws adapted to that purpose. The administration of these probate laws was transferred by the constitution to the chancery courts, and forms a branch of the chancery coart, separate and distinct from that of a court of equity proper. These jurisdictions, distinct in their powers, purposes and objects, although administered by the same tribunal, are not to be confounded. The chancery court in the administration of the probate laws must be governed by the same rules and principles of law which governed the courts of probate, before the transfer of their jurisdiction in matters testamentary, and of administration to the chancery courts. And this view accords with the decisions of this court in the cases of Troup v. Rice, 49 Miss., 250; Saxon v. Ames, 47 ib., 568; and Wells v. Smith, 44 ib., 804.
The equity jurisdiction conferred upon the chancery court by the existing constitution cannot be enlarged by legislative enactment ; common law powers cannot be thus given to it.
The case of Payne v. Hook, in 7 Wallace, 425, was a bill in chancery against the administrator and the sureties on his bond.
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Peyton, C. J.,
delivered the opinion of the court:
It appears from the record in this case, that Joseph Gr. Caraway as administrator of the estate of Benjamin Sherrod, deceased, entered into bond with O. C. Tate, R. Sherrod and L. W. Smith as his sureties therein, for the faithful administration of said estate. That after a partial administration of the estate, the said Caraway died, and Lewis Stone became his administrator, who made a settlement of his intestate’s account as administrator of the estate said Benjamin Sherrod; and upon said settlement, the estate of of the said Caraway was declared to be due and indebted to Joseph Everett, one of the heirs of the estate of the said Benjamin Sherrod, the sum of $109.67, which was decreed to be paid to him as his distributive share of said estate.
The said Joseph Everétt filed his bill in the chancery court of Noxubee county, alleging the above stated facts, and also that no assets of the estate of the said Caraway ever came to the hands of his administrator, who resides in the state of Alabama, and that the estate of said Caraway is wholly insolvent; that R. Sherrod, one of the sureties on the administration bond of the said Joseph Gf. Caraway, is deceased, and no administration of his estate has been had. That said sum of money remains due and urpaid to the complainant, who prays in his said bill that upon a final hearing of the cause, the said C. O. Tate and L. W. Smith, as suretieshrpon said administration bond, may be ordered and decreed to pay to the complainant the said sum of $109.67, found due him upon settlement as aforesaid, for his distributive share as one of the heirs of the said Benjamin Sherrod, deceased.
To this bill of complaint, one of the defendants, L. W. Smith, filed a demurrer, alleging among others, as causes of demurrer, [579]*579the want of equity on the face of the bill, and that there is a full and adequate remedy at law. The demurrer was overruled by the court, and hence the cause is brought to this court by the said L. W. Smith, who assigns for error the action of the court below in overruling the demurrer.
This ease presents the important question for our consideration, whether under our system of jurisprudence, a court of chancery can entertain jurisdiction, and give relief against sureties on the administration bond, for the breaches of the condition thereof by the administrator in the maladministration of the estate. And in the decision of this question, it becomes necessary to inquire into the powers and jurisdiction of the court of chancery under our present constitution.
The 16th section of the 6th article of the constitution provides, that chancery courts shall be established in each county in the state, with full jurisdiction in all matters in equity, and of divorce and alimony; in matters testamentary and of administration; in minors’ business and allotment of dower, and in cases of idiocy, lunacy and persons non compos mentis. From this, we see that, the constitution confers upon the chancery court full jurisdiction of all matters in equity, and equity is defined to be that ^system of justice which is ádministered by the high court of chancery in England in the exercise of its extraordinary jurisdiction. Bispham’s Principles of Equity, 1. Upon reference to the history of that court in England, it will be seen that it consisted of two distinct tribunals : the one, ordinary, being a court of common law ; the other, extraordinary, being a court of equity. The ordinary branch of that court constitutes no part of the jurisdiction of the court of chancery here.
In England, the administration of estates of decedents belonged to the ecclesiastial courts, and in this country the jurisdiction over the administration of the estates of decedents is conferred upon courts of probate, surrogate or orphans’ courts, which, in general, possess the powers of the ecclesiatical courts in England upon the [580]*580subject. Proper means^are provided to compel the executors and administrators to collect the assets, to settle proper accounts, and to satsify the claims of creditors, legatees and distributees. But it sometimes happens, that in order to the relief required, other remedies than those which are incident to the procedure in these tribunals, are necessary, in which case a resort to chancery becomes unavoidable. Thus, a bill may be filed by a creditor to subject real or personal property, frauduently disposed of by the decedent in his lifetime, to his debts. Pharis v. Leachman, 20 Ala., 662, and Hagan v. Walker, 14 How., 29. Or to follow assets which have passed into the hands of legatees or distributees, where the remedies against the executor or administrator have been exhausted. Ledyard v. Johnston, 16 Ala., 548. And in some other instances, the equitable remedy has to be invoked in order to meet cases which cannot be properly dealt with in other tribunals.
It has been sometimes said that an executor or administrator bolds the assets in the character of a trustee, and that the jurisdiction of equity attaches on the existence of a trust. It is true that in one sense, an executor or administrator may be called a trustee, as any man may be so called who is bound to apply property for the benefit of others ; but he is not a trustee in the technical sense, so as to give a court of equity jurisdiction on the ground of trust alone.
Judge Story says, that much of the English doctrine in regard to the extent and the foundation of equity jurisdiction, in matters affecting the settlement of estates, has no application to many of the American states. The courts of probate in this country have ample powers, both in the extent of their jurisdiction and their mode of procedure, for the accomplishment of the principal objects, upon the attainment of which the English equity jurisdiction, in such matters, is founded. Hence, in this country, courts of equity do not ordinarily interfere in the administration of estates. 1 Story’s Eq., sec. 543.
[581]*581Prior to the adoption of the present constitution, the administration of estates of decedents pertained almost exclusively to the courts of probate, which were governed by a system of laws adapted to that purpose. The administration of these probate laws was transferred by the constitution to the chancery courts, and forms a branch of the chancery coart, separate and distinct from that of a court of equity proper. These jurisdictions, distinct in their powers, purposes and objects, although administered by the same tribunal, are not to be confounded. The chancery court in the administration of the probate laws must be governed by the same rules and principles of law which governed the courts of probate, before the transfer of their jurisdiction in matters testamentary, and of administration to the chancery courts. And this view accords with the decisions of this court in the cases of Troup v. Rice, 49 Miss., 250; Saxon v. Ames, 47 ib., 568; and Wells v. Smith, 44 ib., 804.
The equity jurisdiction conferred upon the chancery court by the existing constitution cannot be enlarged by legislative enactment ; common law powers cannot be thus given to it.
The case of Payne v. Hook, in 7 Wallace, 425, was a bill in chancery against the administrator and the sureties on his bond. The bill charges gross misconduct on the part of the administrator; that he had made false settlements with the probate court; withheld a true inventory of the property in his hands ; used the money of the estate for bis private gain; and obtained from the complainant, by fraudulent representation, a receipt in full of her share of the estate, on payment of a less sum than she was entitled to receive. The object of the bill was to obtain relief against these fraudulent proceedings, and to compel a true account of administration, in order that the real condition of the estate may be ascertained, and the complainant paid what justly belongs to her. It appeared from the bill that Hook had not yet made his final settlement. In that case the court say that the circuit court of the United States, for the district of Missouri, had jurisdiction to hear [582]*582and determine this controversy, notwithstanding the peculiar structure of the Missouri probate system, and was bound to exercise it, if the bill, according to the received principles of equity, states a ease for equitable relief. The absence of a full, complete and adequate remedy at law, affords the only test of equity jurisdiction, and the application of this principle to a particular case, must depend altogether upon the character of the case, as disclosed in the pleadings. The facts as charged in the bill show abundant elements of equity. The court says : “ It is very evident that an action at common law. on' the bond of the administrator, would not give to the complainant a practical and efficient remedy for the wrongs which, she says, she has suffered. A proceeding at law is not flexible enough to reach the fraudulent conduct of the administrator, which is the ground work of this bill» nor to furnish proper relief against it.
In this state it is believed that the sureties on an administration bond cannot properly be joined in proceedings against the administrator for an account and final settlement oí the estate. They are responsible only upon the bond, and must be sued at law, after proper steps have been taken to fix the liability of the administrator. Green, Adm’r, v. Tunstall, 5 How., 651. It is held in Alabama to be the true rule that an action can only be maintained against the sureties on the bond at law, and then only after a final settlement and decree of the court ascertaining the amount of the liability of the administrator, and directing him to pay it. This appears to be the settled doctrine in that state. 1 Porter, 70, and 3 Stewart and Porter, 263 and 348. The same rule prevails in South Carolina, where it has been repeatedly decided that the sureties on an administration bond cannot be made parties to a proceeding against the administrator for an account, but can only be made liable on the bond in a suit at law after a decree against the administrator on the settlement of his accounts. Simkins v. Cobb, 2 Bailey, 60; Ordinary v. Robinson, 1 Bailey, 27; 1 Nott & McCord, 587, and 4 Nott & McCord, 113 and 120. This is believed to be the doctrine of Virginia.
[583]*583The ordinary bond for faithful administration is not intended to transfer the jurisdiction of questions connected with such administration from the appropriate and exclusive sphere of the courts exercising probate jurisdiction to that of the common law courts. But these bonds are designed to secure the enforcement of the decrees of the court having jurisdiction in matters testamentary, and of administration, such as the chancery court under our present judicial system, which has succeeded to the. jurisdiction of the probate court under the former system in the administration of estates of decedents. But after the amount due the party in interest has been ascertained, and the court administering the probate laws has decreed the payment of the amount so found due, the party is in condition to enforce his remedy upon the administration bond in a court of law. 3 Bedfield of the Law on Wills, 95; Gandolfo v. Walker, 15 Ohio, N. S., 251.
Where courts of equity exist, as in this state, their jurisdiction should be kept separate and distinct from that of the courts of common law. Bonds are legal obligations, and suits to recover damages for the breach of their conditions are properly cognizable in the courts of law. Before the adoption of the present constitution when the administration of decedent estates pertained to the court of probate, we are not aware of any suit having ever been brought in a court of equity on. an administrator’s bond for the recovery of damages for breaches of the condition thereof. But such suits were invariably instituted in the courts of law. Eor a time such bonds were made payable to the judge of probate, and were put in suit in his name for the use of any person injured by the breach thereof. And the present law provides that the bonds of executors, administrators and guardians shall be made payable to the state of Mississippi, and shall be put in suit in the name of said state, for the use and benefit of-any person injured by the breach thereof. Section 311 of the Code of 1871.
In a court of law suit is sometimes brought in the name of the person having the legal title to the instrument sued on for the use [584]*584of the equitable owner; but this is never done in a court of chancery. The equitable owner brings the suit in his name, and recovers on his equitable title. This provision of the Code clearly shows that the legislature contemplated no change in the forum in which suits shall be brought on these official bonds. And therefore so much of section 976 as attempts to confer upon chancery courts power and jurisdiction to entertain suits on the bonds of executors, administrators and guardians, is unauthorized by the-constitution, and void.
In most of the American states at the present day, courts of equity interfere in the administration of estates to a very limited extent, and only where the powers of the courts of probate, or of those exercising their jurisdiction, and their modes of procedure preclude them from doing complete justice. There must be some equitable element in the cáse to justify the interposition of a court-of equity proper in the administration of estates of decedents.
The decree must be reversed, and this court proceeding to render such decree as the court below ought to have rendered, doth-order, adjudge and decree that the defendant’s demurrer to the complainant’s bill of complaint be sustained, and the bill dismissed.