Page:Federal Reporter, 1st Series, Volume 3.djvu/898

 WARNER V. SPOONBB. 891 �appoint some one else to make the proof. We agree, how- ever, -with the district judge, that the amount for which the administrators are liable, by whomsoever the proof may be made, ahould be first ascertained in the court of probate. The diffioulty could be readily met. The real question in the case lies deeper. It is whether the proof should be for the whole sum due the estate of David Warner, or only for one-third of that sum. The administrators -veish to prove for the whole, in order to have a larger dividend eoming to them as adminis- trators, by which to diminish the amount which they will owe the minor child, and thereby relieve the sureties on their pro- bate bond. �If the cestui que triist were of fuU age, there can be no doubt that she would have no equity to prove more than the equita- ble debt dtie her. Her mother and brother had no lawful authority to put her share of her father's estate at the riskof the business, but they had the right to risk their own shares, and she might have called them to account at any time in the proper court. On the other hand, the firm creditors, trusting to the capital which they saw, had no more than a eonstructive knowledge of any breaoh of trust, and have an equity to require that the bankrupts' share of the intestate'a property shall go to pay them in the first instance. We do not think that the minority of the daughter should vary the case. The law proteots the estate of the father by bonds with sureties, and thus the minor has a double security ; and the sureties have no equity as against the firm creditors, for the reason already given, that they had some control over the acts of administrators, while the creditors had none. Looked at as a simple question of equitable indebtedness, the amount which the bankrupts have misapplied is the share of the minor child, and if she offered to prove for more, she must show some peculiar equity which we have failed to discover. See Ex parte -Ttumer, 2 De G. McN. & G. 927. �Decree affirmed. ����