delivered the opinion of the court.

The petition in this case was filed in the probate court of Tishamingo county by a distributee of an estate; and, there*564fore, does not come within the rule laid down in the case of Robinson v. Gholson, 8 S. & M. 392, where the citation was issued by the court without petition from a person interested in the estate.

The petition in the case now before the court, avers that the debts of the deceased have been paid, and that there is an estate to be distributed. This presents to the court at least a prima facie showing that the administratrix ought to make a final settlement.

The motion to dismiss the petition must be construed as admitting the truth of its allegations, and, under this view of the subject, the case presented by the petition is sufficient in law to require an answer.

If the court had merely dismissed the citation, then the position taken by counsel would have been correct, that the petitioners could not have appealed to this court; but the order of the court in the record, shows a dismissal of the petition as well as the citation. An order dismissing the citation would have extended only to errors in the writ; and another citation upon the same petition would have been ordered.

The decree of the probate court reversed, cause remanded, and the defendant required to answer, and defendant to pay costs.