| Ala. | Jun 15, 1855
The complainants concede by their bill that a final settlement has been made by the appellee of the estate of his intestate, and it -follows that, if such settlement is to stand, it is an end of this "controversy. They charge, however, that this settlement was fraudulent — that
No proof has been taken to establish any fraud in obtaining the decree made upon the final settlement of the estate of Branch, and it is very clear that no imputation of fraud can be deduced legitimately from the record in the cause. The charges of fraud and collusion between the administrator and Giles, the alleged guardian, in respect of the payments made to the latter, wholly fall to the ground, and the answer of the defendant expressly denies all fraud or concealment in making the settlement in the Orphans’ Court. For aught that we can know, the Orphans’ Court of Greene county was fully apprised of all the circumstances attending the payment; and, although its action may have been erroneous, this furnishes no ground for impeaching the decree in chancery ; the settlement having been made before the act of the legislature con’ ferring upon the Chancery Court power to overhaul decrees rendered by the Probate Courts. The mere fact that the $750 were paid to Giles after the letters of guardianship to him had been revoked, it appearing that it was paid in good faith, and for the ward’s accommodation, and in accordance with her wishes at the time, is not sufficient to open a decree which allows it, the circumstances of the payment not being concealed from the court.
The complainant was duly represented by guardian ad litem, upon the final settlement; and if any error intervened in allowing the payment of the $750, this should have been presented by a bill of exceptions, and does not render the settlement void.
.. It is insisted, however, that the appellee admits a mistake has intervened, in the settlement which was made with the Orphans’ Court, of $200 ; one-seventh of which sum, it is alleged, belongs to the complainants. As it respects this sum, we think that, upon well-settled principles of equity, no decree can be rendered for it upon the present bill. The answer admits, that through mistake, two hundred dollars were omitted out of the final settlement. To that extent, the account then had, as confirmed by the decree, was erroneous.
The rule is settled, that where errors or mistakes only are shown to exist in the account, the account will not be opened, as will be done where fraud is shown, but the party alleging the error or mistake in the account will be permitted to surcharge and falsify it. — Danl. Ch. Pr. p. 764; Story’s Eq. Jurisp. § 523 ; 1 John. Ch. R. 550 ; Vernon v. Vawdry, 2 Atk. R. 119. The distinction between opening an account, and' surcharging and falsifying it, is important; because, when opened,' the whole of it may be unraveled ; but when permission is given merely to surcharge and falsify, the onus is upon the party who alleges mistakes to prove them. The account, prima facie, stands as correct; and if the party can show an omission for which he should have a credit, it is added (surcharged) ; or, if a wrong charge has been made against him, it is deducted, which is called a falsification. As the bill before us does not contain any allegation of mistake or errors as the basis for an order to surcharge and falsify the admission in the answer that a mistake exists cannot entitle the complainants to a decree. The decree must be made upon the allegations of the bill — upon the case made by the bill, and the title to relief therein asserted must be substantially shown. The court pronounces its decision, it is said, secundum allegata et -probata (Story’s Eq. Pl. § 500), so that no relief can be granted for matters not charged, although they may appear in other parts of the pleadings and in evidence. — See 1 Danl. Ch. Pr. pp. 377-378, note 2, and. cases there cited ; also, McKinley v. Irvine, 13 Ala. R. 593, 695 et seq.; Evans v. Battle, 19 ib. 398 ; Paulding v. Lee & Ivey, 20 ib. 753-758.
It follows, that as there is no fraud as alleged, and the bill is not framed to surcharge or falsify the account as settled by the decree of the Orphans’ Court of Greene county, the complainants are barred by the decree, which is valid and conclusive until it is impeached in some of the modes pointed out by law ; and they cannot, therefore, have a decree for the two hundred dollar item set forth in the answer. The decree is final until opened, or leave obtained in some way to
As to the pittance due upon the final settlement, it is too insignificant to justify a resort to equity; or to uphold its jurisdiction ; and it is not attempted by the appellants’ counsel to sustain it solely for that sum.
It would, perhaps, have been well for the chancellor to have dismissed the bill without prejudice to filing another to recover for the share due the complainants of the $200 ; but we think their right is not foreclosed by the present bill, which makes a different case from a bill which would seek the attainment of that object. If, however, their right to a new bill would be prejudiced, we should not reverse for this reason, since they had ample opportunity to amend their original bill, making it one with a double aspect, so as to embrace the correction of this mistake, and they failed to do so. Their laches would be a good ground for refusing such modification. — Rumbly v. Stainton and Wife, 24 Ala. R. 712.
Let the decree be affirmed.