JUDGES: Sawyer, J.
OPINION
SAWYER, Judge
By the Court, Sawyer, J., on petition for rehearing:
The complaint is sufficient. We supposed our opinion was sufficiently indicated on this point in discussing, substantially, the same questions raised by counsel on the rulings made upon the trial.
The petition of Lucas for letters states, that the applicant is a nephew of the deceased, and a nephew is one of the persons entitled to letters. There may be others having preference, and if so, on application of a nephew for letters, the persons entitled to be preferred may appear, under section sixty-one of the Probate Act, and contest the application or assert their own rights on that ground. Even other persons, " not entitled," may be " competent," and letters may be granted to such person on " the request of the person entitled." " The request shall be in writing and shall be filed in the Court." (Sec. 66.) The Act does not say that the request shall be stated in the petition. It would be well to state in the petition all the facts upon which petitioner relies to entitle him to letters in preference to other parties. But we think the petition of Lucas states " all the facts essential to give the Court jurisdiction of the case." It is unnecessary to determine whether the Probate Court was the proper custodian of the bond from the time of the acceptance of the resignation of the former executors till the appointment of plaintiff, or not.
The resignations of the executors respectively were accepted by the Court, and there is nothing to affirmatively show that these proceedings are invalid. When Lucas was appointed administrator de bonis non, he became entitled, as such administrator, to the possession of the assets of the estate, wherever they might be, and he has obtained possession--no matter from whom--of the instrument in suit. He is now the proper custodian, and entitled to maintain this action.
This is not an appeal from an order, or judgment of the Probate Court, and it is not our province to collaterally determine in this case whether the Probate Court erred in ascertaining the value of the estate, and fixing the amount of the administrator's bond. The Probate Court had jurisdiction of the subject-matter, and it determined the question of the value of the property, and fixed the amount of the administrator's bond upon the evidence before it. If the Court erred, its action must be reviewed in some other mode. Rehearing denied.