11 Ala. 292 | Ala. | 1847
There can be no doubt, that the failure of the executor to return a full and complete inventory of the estate of his testator, was a breach of the condition of his bond, which required him to perform all the duties which are, or may be required of him by law, of which this was one. But in our judgment, this action cannot be maintained under .the facts disclosed by the declaration. It appears that the
At the final settlement, if not previously, it was doubtless competent for the creditors to contest the inventory filed by the executor, and to increase the fund for distribution, by showing either that he had withheld, or converted the assets of the estate, or that they had been wasted or lost by his negligence. [Duffee v. Buchanan, and wife, 8 Ala. 27.] The entire body of our statute law on this subject, contemplates the final settlement of the estate in the orphans’ court, and this results necessarily from the fact, that with a few exceptions, all debts are placed upon the same footing, and when the estate is insolvent, the fund for distribution is to be equally divided amongst all the creditors. This settlement when made, is conclusive in favor of the executor or administrator, and in the language of the statute, “shall not be impeached except for fraud in obtaining the same.” [Clay’s Big. 304, $ 37.]'
Whether creditors, or others interested in the estate, might not have relief in equity, when the executor or administrator had withheld the assets, even after the settlement of the estate, is a question we are not called on to consider. It is clear that the decree of the orphans’ court declaring an estate insolvent, or its final decree., cannot be collaterally impeach
The judgment will be reversed, and if desired, the cause will be remanded.