Page:Federal Reporter, 1st Series, Volume 9.djvu/554

m'dKBMOTT l?. COPELAND. 639 �that the judgraent 6f the court of probate -was not conclusive where it had been obtained by fraud ; by whieh he undoubtedly meana such fraud as could be taken advantage of in a collateral proceeding. �Thisis also the gravamen of the bill in the Union Bank of Tennes- see V. Jolly's Administrators, 18 How. 503, and Donohue y.Roberts, 1 Fed. Eep. 449. I know of no authority, however, which will author- ize this court to revise or disturb the deoree of a probate court, ob- tained without fraudaient conduct on the part of the executor, in a case of which it had jurisdiction. Had the bill charged that the pro- ceedings in the probate court were still pending, or that the decree settling the estate had been fraudulently obtained, the case would have presented a different question. But, even if this decree were im- peachable, we do not see that the executors have been guilty of any dereliction of duty of which the plaintiffs are entitled to complain. They have paid all the debts and specitic legacies, and procured the entry of an order setting off the residue of the estate to the distributees under the will. This seems to be the exact course authorized by the statute. Section 4407 of the Compiled Laws provides that the exec- utor or administrator shall be entitled to the possession of the per- sonal estate of the deceased, until assignment or distribution of the same to the heirs, legatees, or other persons entitled thereto, by the order of the probate court, or until the estate is finally settled. �In Brown v. Forsche, 43 Mich. 497, it is said that this section does not render it imperative that the personal representative should take possession of the estate; it only empowers him to do so. Section 4496 authorizes the probate court, after the payment of the debts, funeral charges, and expenses of administration, and after the allow- ance made for the expenses of maintenance of the family of the deceased, etc., to assign the residue of the estate to such other per- sons as are by law entitled to the same. Section 4497: "In such decree the court shall namethe persons, and the proportions to which each shall be entitled, and such persons shall have the right to demand and recover their respective shares from the executor or administrator, or any person having the same." It appears that the decree of the probate court, in the case under consideration, was entered in conformity with these provisions, and the right of the com- plainants to proceed against any person having in bis possession the estate, or any portion thereof, belonging to decedent, to obtain their distributive share of the same, appears to be clearly allowed under this section. ��� �