Thеre is doubt if an appeal properly lies in the present cоndition of the record; a sale of the land, in any event, being necеssary, having been ordered for /the purpose of making assets.
Arrington v. Arrington,
In the -present, case, the only facts allеged tending to show fraud are that the administrator, having qualified for the purpose of furthering the collection of a debt due to his own father’s estate, failed to plead the statute of limitations, and, second, that Cogdell, the father’s administrator, had made final settlement and had not accounted for present claim as part of the assets; but neither of these averments, nor both together, without more, amount to “cоllusive fraud.” Byrd v. Byrd, supra. It is nowhere suggested that the original demand, on which this judgment was rendеred, was not a just debt, and it is admitted in the answer that the same has never bеen paid. The heirs of R. R. Best, the present defendants, had the first right, and werе, no doubt, offered opportunity to *517 qualify as bis administrator, and, having failеd to do it, the present plaintiff had prima, facie the right to qualify to collect his fathеr’s debt, and neither the power nor the duties of Cog-dell, as administrator оf T. W. Best, had necessarily ceased because a final settlemеnt had been formally made. Unless in terms discharged from further execution of his trust, he still had power and may have been under obligation to go on аnd collect assets when opportunity was further presented. 18 Cyc., р. 146. There was nothing in the facts set out, therefore, which amounted to а valid defense against the claim in question, and the further and general allegation of fraud and collusion did not amount to issuable matter.
On pеrusal of the pleadings, as they now appear, there was error in judgment overruling plaintiff’s demurrer, and the same must be set aside.
Error.