| Ala. | Jun 15, 1840
— It is insisted by the plaintiff that in this case, there is error in the record — Fi?'st. Because the proceedings preparatory to the decree are irregular: Second. Because the decree is unauthorized by the matters appearing in it.
First. By the 21st section of the act of 1806, “concerning wills and testaments, the settlement of intestate’s estates, and the duty of executors, administrators and guardians,” (Aikin’s Digest 182) the judge of the county court is authorized and required to take, receive and audit all accounts of executors, administrators,” &c,; “and after examining and auditing such accounts, and causing them to be properly stated, to report the same for allowance to the next term of the Orphans’ court, the executor, administrator,” &c. giving at least forty days notice of his intention of having such account presented at said court, for allowance at said term.” The notice is
By the 1st section of an act of 1S22, “ concerning the judges of the county court,” it is enacted, that “ Hereafter, it shall be the duty of the judges of the county courts, in their respective counties, to give the notice now required by law to be given by executors, administrators, or guardians, of the term of the said court, at which any executor, administrator or guardian, may be required by said judge, to present for allowance, his settlement or account current, made as prescribed bylaw, in vacation.” (Aik. Dig. 252.)
The order of the court, which notices the presentation of the accounts and vouchers of the administrator, remarks, that they “were stated and examined by the court,” and then orders publication to be made, &c. “ notifying all persons concerned, that on Monday, the 16th day of September next, said account will be acted on and allowed, and the estate finally settled, and distribution thereof made by the court.” So far, there is a substantial compliance with the law; but the recital in the decree of the court, shows, that the terms in which the order required publication to be made, were not substantially followed; and'that the publication actually made, called upon the administrator and others, to file their vouchers against the estate.” In the decree, the judge also says in reference to the accounts and vouchers, “ I have examined the same, and audited the accounts, and reported them fora final hearing, on the third Monday in September, it being a regular term of the Orphans’ court of Tuscaloosa county, and the examination of the accounts was continued from day to day, up to the present time.”
It is clear, that the publication which the decree informs us was made, is not such as the law contemplates. It calls upon the administrator and others to file their accounts and vouchers. The administrators should have done this previously, and the judge have examined, audited and stated them; that is, the judge should have caused the account of the administrator, so far as it
Whether the examination and statement of the administrator’s accounts, were completed previous to the third Monday in September, is left very much in doubt by the recital in the decree; yet, as there are other errors apparent in the proceedings, we need not determine this point. (Legatees of Grayson v. Horn; 7 Porter’s Rep. 270.)
It was clearly irregular, to charge the administrator with the notes remaining in his hands uncollected, and to authorize the collection of the defendant’s portion of them, as if they had been converted by the plaintiff. Such a decree is not only opposed to the law; but in the absence of all proof of neglect or mismanagement, has not the semblance of justice to sustain it. A question precisely analogous, arose in Dobbs et al. v. The Distributees of Cockerham’s estate; 2 Porter’s Rep. 341. In that case a proceeding was instituted before the Orphans’ court, to ascertain whether four slaves not included in the inventory, were the property of the intestate at the time of his death, and subject to distribution. The slaves were determined to constitute a part of the intestate’s estate: whereupon, their value was assessed by a jury, and a decree rendered by the court, against the administrator for the same. In considering this point in the case, the court say, “We think the court did err, in charging the administrators with the value of the four slaves, as found by the jury, and in making distribution in cash. By the verdict, the negroes were found subject to distribution; and should have been divided among the distributees, or, if that could not be done, they