27 N. J. Eq. 552; Landers v. Stone, 45 Ind. 404. Nor will letters of general or original administration be granted, while other letters granted and confirmed remain in full force and effect, within the same general jurisdiction: Slade v. Washburn, and Landers v. Stone, supra.

GRANTING OF LETTERS PREVENTED BY SHOWING WANT OF ASSETS.—In Maine, the statute provides, that letters of administration shall not be granted, unless the estate of the decedent amounts to at least twenty dollars, or there are unpaid debts in an equal amount, and in the latter case, that he has left that amount in value in real estate: R. S. 1840, c. 105, sec. 39; Bean v. Bumpus, 22 Me. 549; Gross v. Howard, 52 Id. 192. In the same manner the statute of Massachusetts restrains the court from granting letters of administration de bonis non where the estate or debts against it amount to less than twenty dollars: R. S. 1882, c. 130, sec. 9; Pinney v. McGregory, 102 Mass. 186; Chapin v. Hastings, 2 Pick. 361. In Indiana the statute provides, that administration shall not be granted unless the estate is worth over three hundred dollars: 2 R. S., p. 279; Pace v. Openheim, 12 Ind. 533. But apart from any statutory enactment fixing the minimum amount capable of being administered upon, there seems to be no limit. The existence of assets within the local jurisdiction of the court, though the value is merely nominal, will enable it to grant letters of administration: Sullivan v. Fosdick, 10 Hun, 173. But there must be some assets, some property of the decedent, some estate, else there would be presented the contradiction of appointing an administrator for an estate that was not in existence: Patillo v. Barksdale, 22 Ga. 356. If, however, it appears that the succession would not have defrayed the expenses of administration, the heir or successor of decedent holding his effects can not be compelled to take out letters of administration, nor pay the debts of decedent, even upon the petition of one of his creditors: Soubiran v. Rivol let, 4 La. Ann. 328.

LETTERS WILL NOT BE GRANTED WHEN THERE APPEARS NO NECESSITY FOR THEM, and an application for them may be successfully opposed upon such a showing. In Allman et al. v. Bergeron et al., 16 La. Ann. 191, defendants asked for letters of administration upon the estate of Mrs. Joseph Hidalgo, deceased. Both parties were heirs. The plaintiffs opposed the granting of the letters on the ground that a partition of the property had already been decreed, and the property sold; that there were no debts or charges; that administration would entail useless and unnecessary expense, and that plaintiffs had a better right to letters of administration than defendants. The lower court sustained the opposition, and upon appeal, the judgment was sustained, upon the ground that there was no necessity for letters being granted. And where letters had once been applied for and granted, but for some reason not issued, upon an application for letters ten years after the first application, the court held that letters should be refused, in the absence of special reason calling for administration at the time, and that it would be presumed, without clear proof to the contrary, that no debts existed against the estate at the time letters were last asked for: Duncan et al. v. Veal, 49 Tex. 603.

Where all the parties interested in an estate have settled their interests in it, the settlement is binding on the parties to it. The settlement renders administration unnecessary, and none of the parties in interest can defeat it by procuring administration. If there be no debts the granting of letters to any one may be effectually prevented: Hibbard v. Kent, 15 N. H. 516; Clark v. Clay, 31 Id. 393; Giles v. Churchill, 5 Id. 337; George v. Johnson, 45 Id. 456; Taylor v. Phillips, 30 Vt. 238; Babbitt v. Bowen, 32 Id. 437; Kilcrease

v. Shelby, 23 Miss. 161; Reid v. Butt, 25 Ga. 28; Walworth v. Abel, 52 Pa. St. 370; Finch v. Finch, 14 Ga. 362, 367; Brashear v. Conner, 29 La. Ann. 347; Spann and Wife v. Jennings, 1 Hill's Ch. 324, cited in the principal case. Even without proving the will the parties interested can divide the estate: Carter v. Owens, 41 Ala. 217; and administration may be dispensed with and distribution decreed where the only office of administration would be distribution: Fretwell v. McLemore, 52 Ala. 124; Marshall v. Crow's Adm'r, 29 Id. 278; Vanzant et al. v. Morris, 25 Id. 285. But while a division made by all the legatees binds all, yet in order that it may do so, they must be of age: Amis v. Cameron, 55 Ga. 449; Blake v. Kearney et al., 30 La. Ann. 388. If, however, some be minors and they ratify on coming of age, then all are bound, and the title of each to the severalty allotted to him becomes perfect: Hatcher v. Cade, 55 Ga. 359.

ADMINISTRATION ON THE ESTATE OF A MINOR, it is sometimes urged, may be prevented, for the reason that the intestate must have been incapable of creating debts, and that, therefore, there would be nothing to do but distribute the estate. But this is not strictly true. A minor may be liable for necessaries, or may be liable for a tort committed by him. In either event, letters would be granted upon application of creditors upon such a showing; but generally, a showing of the intestate's minority will prevent the granting of letters of administration upon his estate: George & Ratcliffe v. Dawson's Guardian, 18 Mo. 407; Cobb v. Brown et al., Speers' Ch. 564.

GREAT LAPSE OF TIME SINCE THE DEATH OF THE INTESTATE is sometimes considered a sufficient reason for refusing letters of administration. At common law, no time is prescribed within which letters may be granted. Some of the states have statutes limiting the time. The code of Tennessee provides that after a lapse of twenty years, administrations shall not be granted, except to distributees who were minors or femes covert at the death of the decedent; as to them, thirty years are allowed. In all other cases, letters of administration granted twenty years after such period are utterly void, and of no effect: Code of Tennessee, sec. 2220; Townsend v. Townsend, 4 Coldw. (Tenn.) 70. In Texas, under the probate act of 1870, sec. 102, no administration can be granted after four years have elapsed from the death of the intestate. After that time it is presumed that there are no debts, and that the property, if any, has gone into the possession of the person entitled to it: Probate Act, 1870, sec. 45. And it seems this presumption is a conclusive one; at least the property is, after four years, beyond the reach of the creditors of the intestate: Loyd v. Mason, 38 Tex. 212. In Pennsylvania, the act of March 15, 1832, prohibits registers from granting original letters of administration on the estates of persons who have been dead twenty-one years, unless ordered by a register's court: Foster v. The Commonwealth, 35 Pa. St. 148. But independent of any statute, the showing that great time had elapsed since the death of the intestate, will always raise a suspicion against the applicant for administration, and the court will be justified in calling for an explanation; and in the absence of such explanation, letters will be properly withheld: In the Goods of Elizabeth Darting, 3 Hagg. Ecc. 561. It was the practice of the prerogative court to require the time of the death to form part of the oath and be noted in the margin of the petition, in order that the registrar might determine whether there had been any suspicious delay in the application for letters, and also that debtors, by having their attention directly called to the date, might more easily ascertain the right person to make payment to: In the Goods of Darling, supra; 1 Wms. Ex., 6th Am. ed., 451, note (b).

After forty-two years, administration will be presumed for the purpose of protecting the ancient title to the real estate and the possession of the personal property, even to defeat a creditor, and the court says: "The peace of society demands that courts of equity should interpose where there has been such gross laches in prosecuting rights, or long acquiescence in the assertion of adverse rights." The rights of innocent purchasers were involved, and the petitioners were perpetually enjoined from procuring letters of administration upon the estate: Woolfolk v. Beatty, 18 Ga. 520. And after twenty or thirty years, an administration will be presumed to protect a voluntary distribution, made by the distributees of an estate who are at the time all sui juris: Desverges v. Desverges, 31 Id. 753, citing the principal case. And letters de bonis non were refused in Texas after a lapse of sixteen years, there being no debts save one to the contestant: San Roman v. Watson, 54 Tex. 254. Two hundred and fourteen years had elapsed since the death of the testator, in Van Giessen v. Bridgford, 83 N. Y. 348, and 18 Hun, 80, when letters were asked for. The application was denied on the ground that after such a lapse of time administration would be presumed to have been had upon the estate, or that the rights and interests of all the parties interested had been satisfactorily adjusted between them. But if no administration be had, no title vests in the parties taking the estate, even though they are the next of kin; and if an administrator be appointed even ten years after, the estate vests in him, and he may recover possession of it: Whit v. Ray, 4 Ired. L. 14.

THE PRINCIPAL CASE IS CITED in Adams v. Barrett, 5 Ga. 404, 421, to the point that equity will, upon principles quia timet, cancel bonds, notes, and other securities; in Josey v. Rogers, 13 Id. 478, 482, to the point that where one of the heirs acted in the premises by virtue of an agreement between the heirs and distributees, and distributed the estate among them, a cross-bill is the proper method of defense to save him from being held a tortfeasor in the matter; in Finch v. Finch, 14 Id. 362, 367; Hatcher v. Cadle, 55 Id. 359, 360; Ames v. Cameron, Id. 449, 452; Gouldsmith v. Coleman, 57 Id. 425, 426, to the point that an agreement among the heirs to distribute the estate without administration would be enforced.

THURMOND ET AL. v. REESE.

[3 GEORGIA, 449 ]

EQUITABLE ESTATE IS SUBJECT TO PAYMENT OF CREDITOR'S DEMANDS only after the legal remedies have been pursued to every available extent without success.

PROPERTY FRAUDULENTLY CONVEYED MAY BE SUBJECTED TO DEMANDS OF CREDITOR in a court of equity.

THE facts are stated in the opinion.

F. H. Cone, for the plaintiff in error.

R. V. Hardeman, for the defendant in error.

By Court, LUMPKIN, J. The facts in this case, so far as they are material to its proper determination, are briefly these: Several persons were indebted to Cuthbert Reese, the defendant in

error, on sundry small notes, on which suits were brought in the justice's court. Pending the cases, the defendants executed mortgages on the whole of their property to John Thurmond. The fi. fas. issuing from the magistrate's court in favor of Reese, were levied on the whole of the property, real and personal, belonging to the defendants, except five negroes, which were run off. The proceeds of the sale, amounting to some sixteen hundred dollars, were applied to older executions. Cuthbert Reese then filed his bill, alleging the foregoing facts and charging that the mortgages were without consideration and fraudulent, and made for the express purpose of defeating his debt. The bill stated that these mortgages were recorded, but no precise sum being set forth in them, purporting to be to secure the payment of two thousand dollars, "more or less," purchasers were de terred from bidding, not being able to ascertain the extent of the lien. Notice was given of the mortgages on the day of sale. Besides this, Thurmond had obtained the control of two old executions against the defendants, and by the use of these and his mortgages, and by various covinous practices at the sale, he succeeded in buying in the property for sixteen hundred dollars, which was well worth eight thousand or ten thousand dollars; and by seizing this fund with his old fi. fas., he had entirely defeated the complainant in the collection of his just claims. The bill prays, that an account may be taken of the actual indebtedness of the mortgagors to Thurmond, that the land and negroes bought by him may be resold, and that after discharging his demands, the residue be appropriated to complainant's debt.

The answer admits that the property was sold as represented, but denies the fraud, or that the sacrifice in the sale was attributable to the causes assigned in the bill. A resale of the property has been decreed by two successive special juries. During the progress of the appeal trial, Reese tendered in evidence his justice's court executions. This testimony was objected to, on the ground that there was no entry by the proper officer, to wit, the constable, that there was no other property to be found. Judge Meriwether overruled this objection, and to this decision the plaintiff in error excepts. And it becomes our duty to revise this opinion, and to reverse it if it be erroneous.

We distinctly recognize the rule, that before the creditor can come into a court of equity to subject the equitable estate of his debtor to the payment of his demand, he should have pursued his legal remedies to every available extent without being able to obtain satisfaction. And for the most obvious rea

son; why ask the aid of chancery to enforce legal process, while there are legal assets liable to seizure and sale? But this is not the case made by this bill; it is filed to set aside fraudulent conveyances, made for the express purpose of defeating the collection of complainant's debt, and to annul a sale in which the property of the debtor was sacrificed by the improper use of these covinous instruments. The bill makes a clear case of actual fraud, and a strong case. A court of equity has therefore jurisdiction in remedying the fraud, and Cuthbert Reese comes before it, neither appealing to its favor or its discretion, but demanding relief ex debito justitiæ. The case of the Planters' and Mechanics' Bank v. Walker et al., 7 Ala. 946, is precisely parallel in principle; and the court there say, that it is a misnomer to consider and call the thing in controversy, the equitable estate of the debtors, for, being in pari delicto with those who claim under them, chancery would not entertain a bill in their favor, but leave them to adjust as they could the rights they set up, without lending its aid.

But the right of the creditor to subject property of his debtor, fraudulently conveyed, is founded in that principle of the common law which enjoins integrity as a virtue paramount to generosity, and denounces fraud as incompatible with honesty and fair dealing. No doubt the creditor here, as in the case cited, could relevy his execution, and attack those conveyances at law; but the court in our sister state assign a very satisfactory reason why equity should retain its concurrent jurisdiction over this subject. "The right," says Chief Justice Collier, "to disembarrass the title before the property is sold to satisfy the judgment, is valuable to the creditor; if he were compelled to sell it under execution incumbered with a conveyance or lien supposed to be fraudulent, comparatively few would be inclined to purchase, and they at a depreciated price. This consideration, apart from all others, is a potent argument in favor of the jurisdiction of equity." The very case under discussion affords a striking illustration of the truth of this doctrine.

Let the judgment be affirmed.

THE PRINCIPAL CASE IS CITED in Colquitt v. Thomas, 8 Ga. 258, to the point that one who buys of a fraudulent grantee bona fide and without notice will be protected, and is distinguished in Worsham et al. v. Brown, 4 Id. 284.

EQUITABLE INTEREST IS NOT SUBJECT TO BE SEIZED AND SOLD under a fi. fa., but after the return of a writ unsatisfied, the creditor may, in equity, file his bill and have an equitable interest sold: Harris v. Alcock, 32 Am. Dec. 158, and note 167, where other cases in this series are referred to; Executors of Lamar v. Simpson et al., 42 Id. 336.