64 Neb. 288 | Neb. | 1902
Upon examination of the final report and accounts of Jonathan Lydick, as executor of Archibald Matthews, the county court for Burt county approved them and found them correct, except as to two certain legacies for which credit was claimed, which were found to remain unpaid. Accordingly a decree was entered approving and confirming the report, with the exception of these two items, and directing the executor to pay them and to pay the costs of administration. An appeal was taken to the district court, where, upon hearing, the same conclusion was arrived at, the executor was ordered to pay the legacies and it was provided that the legatees recover the amount thereof.
Two claims are made by counsel for appellant: (1.) That a decree of distribution rendered by a county court after examination of the final report and accounts of an executor, finding that he has assets in his hands and ordering them distributed among creditors and legatees, does not create any personal liability in the executor. (2.) That even if it did create such liability, the only method of enforcing it would be by suit upon the executor’s bond; that the county court could not enforce its judgment or decree of distribution by execution, and in consequence the district court, upon appeal, would be equally without such power.
The first contention is disposed of by section 255, chapter 23, Compthed Statutes, which provides: “Whenever a decree shall have been made by the probate court for the distribution of the assets among the creditors, the executor or administrator of the estate, after the time of payment shall arrive, shall be personally liable to the creditors for their debts, or the dividend thereon, as for his own debts, or he shall be liable on his bond.” It has been said that the decree of distribution and order to pay debts and legacies “corresponds, in some measure, to the judgment de bonis propriis at common law.” 2 Woerner, Law of Administration, sec. 411. And this view has been taken under statutes substantially the same as our own. Bank of Orange v. Kidder, 20 Vt., 519, 523; Allen v. Smith, 72 Miss., 689. It is true there are rulings to the effect that the decree of distribution is a mere finding of amounts due, and has not the full force of a judgment. Piggott v. Ramey, 1 Scam. [Ill.], 145; Green v. Fagan, 15 Ala., 335. But in such cases it will be found that the courts of probate were of limited jurisdiction. Matthews v. Hoff, 113 Ill., 90. With
We do not think the remedy by suit on the executor’s
We recommend that the decree be affirmed.
By the. Court: For the reasons stated in the foregoing opinion, the decree of the district court is
Affirmed.