delivered the opinion of the court.

On the death of J. J. Filhiol, it appears that his widow, Lucy White, became administratrix of his estate. She after-wards intermarried with one Hudson. In 1S35 she filed an account of her administration, but no further proceedings were had until after the death both of her last husband and herself. Hempkin was then appointed administrator of her estate, and finally the heirs of J. J. Filhiol, in 1839, filed I heir opposition to the account thus rendered by his widow. They deny the existence of the debts which she claims to have paid, contest the interest and a fee to an attorney. They further charge that she ought to account for one hundred and twenty head of cattle belonging .to the estate, together with about seventy-five head of hogs. They then set up a claim for the price of a slave Margaret and her children, which had been sold as a part of the estate of Lucy Hudson, who had rendered the account; but which they allege belonged to the estate of J. J. Filhiol, her first husband. They allege that they have submitted their claims to Hempkin the administrator, and that he refuses to allow them, and they concluded by praying that after legal notice the said claims may be allowed, and the administrator condemned to pay them. The administrator answered this opposition and claim, by excepting to the sufficiency of the opposition in point of form, it being too vague; averring that the counsel .fees were necessary and useful, and had been paid, and that the payment of the debts were authorized. He alleges, that his intestate had already accounted to the heirs for the cattle and hogs claimed, and that she, and not J. J. Filhiol, was the owner of the slave Margaret and children.

The heirs afterwards moved to dismiss all the proceedings in the case ; first, because no legal action was had upon the account in the lifetime of Lucy Hudson, and that none could be taken after her death, as the administration did not decend to the heirs or administrator, and neither appear to be parties; second, because she was a married woman and her *329husband did not to authorize her to appear in court. The administrator moved to dismiss this motion.

Before the court had acted upon these motions or exceptions, which were wholly irregular, the heirs having already contested the account rendered upon its merits, and a motion to dismiss an exception, being a novelty in practice which we are not disposed to encourage, the heirs came forward with a new petition, in which they state their heirship of J. J. Filhiol, his death in 1829, the appointment of his widow Lucy White as administratrix, her death, and the appointment of Bernard Hempldn as administrator of her estate. They represent that she never rendered any final account of her administiation ; that she took possession of the whole estate and converted a part of it to her own use, and that her administrator has failed to return what still exists, in kind, to the petitioners. They pray that he may be condemned to render a full account of the administration of his intestate, and to restore such property as exists, in kind, which came into his possession as administrator, belonging to the estate of J. J. Filhiol, or to account for the price on failure to do so, and to pay five thousand dollars, or such balance as is due by Lucy White, the late widow.

To this petition the administrator answered, that he had no knowledge of the estate of Filhiol, except that derived from the records of the court, and that he could not be required to restore property which never came into his hands. If the late administratrix made way with the property, be is not accountable for it, but the plaintiffs must look to her heirs.

It is obvious that, in these last proceedings, the parties figure in a different capacity from that which they had assumed at the commencement. In opposition to the account filed by Lucy Hudson, these opponents appear as the heirs of J. J. Filhiol, and the account opposed relates to the administration of his estate. In the last they appear as creditors of Lucy Hudson, claiming a debt due by her of the administrator of her estate, and whom they appear to treat at the same time, as the administrator of Filbiol’s estate. This blending of claims and qualities of the parties, has created *330confusion in the record. A part of the opposition to the first account rendered by Lucy Hudson, in 1835, relates to what f°°k place after her death, by Hemplrin the administrator, to wit: thesale of certain slaves which came into his hands as a part of her estate. The creditors of Lucy Hudson have an interest in that question, and are not parties. If we were ^ * now to adjudicate upon that claim, it would not be conclusiye uPon *be creditors. Indeed the question upon the homo-location of an account is whether it was correct when ren- . .. .. ... . . dered, and parties cannot insist upon its being amended by adding what took place afterwards; in other words, the ques(jon was what account was Lucy Hudson bound to render in 1835, and not what her administrator was accountable for as such, long subsequent to the filing of the account. Hemp-kin represented her in a judicial proceeding, commenced during her lifetime, and was not regularly called upon to account for his own administration of her estate in the same proceedings.

The opponents having answered to the merits, were too late in objecting to a want of authority from the husband to file the account of administration.

The Court of Probates does not appear to have acted upon many of these exceptions, motions, counter-motions, and petitions, but after a trial upon the merits, homologated the account as originally filed. It is shown that the cattle and hogs had already been accounted for to the heirs. The other items of the account v/ere satisfactorily established. But, we think, the question as to the slave Margaret and her children ought to be left open for final adjudication, contradictorily with all parties interested therein. The judgment is silent as to that claim, and it is left doubtful whether the Court of , Probates took it into consideration. }

It is, therefore, ordered and decreed, that the judgment of the Court of Probates be affirmed, with costs ; reserving, however, to the heirs of Filhiol their right, if any they have, to claim the price of the slave Margaret and her children.