delivered the opinion of the court.

This was a suit commenced at the relation of a judgment creditor of the estate of Isaac S. Aycock, deceased, in the name of the judge of the probate court of Chickasaw county, on the bond executed by the administratrix of the intestate.

The court below sustained a demurrer to the declaration, on the ground, 1st. That it was not averred that the administratrix was not required to settle with'the probate court, before the commencement of this suit; 2d. Because it was not alleged that the administratrix had been required to settle her administration with the probate court, or to pay this or any other debt; 3d. Because it did not appear that the administratrix had made a settlement with the probate court.

These several grounds of demurrer present no obstacle to the maintenance of the action by the creditor. The probate court has nothing to do with the settlement of debts, except in passing upon the administrator’s accounts upon settlement, and in cases of insolvent estates. It is very true, that to entitle a legatee or distributee to maintain a suit on the bond of the executor or administrator, certain questions must first be determined in the probate court, because in the case of wills, it has exclusive jurisdiction, and must determine who are the legatees under the same, as well as the extent of their legacies, &c.; and in case of distributees, the probate court must settle and determine the questions of heirship, next of kin, &e., and settle the amount due to each. These several parties, however, have none but contingent rights till the debts of the estate shall have been paid. It is for this reason, that a settlement must be first had in the probate court, to determine the amount of the estate to be distributed, and this cannot be done till the claims of creditors, which are superior to those legatees or distributees, have been paid.

Judgment of the court below reversed, and cause remanded.