51 Ark. 14 | Ark. | 1888
SUPPLEMENTAL OPINION ON MASTER’S REPORT.
We have had under consideration the exceptions to Master Campbell’s report in this case. In submitting the case to him for an account, we especially confined him, as to the charges against the administrator, to the statement contained in the fourth and fifth paragraphs of Master Quarles’ report in the court below, because the decree in that court overruling exceptions to this statement and giving judgment thereupon, was alone appealed from. The exceptions of the defendant to all other matters of account in the report were sustained and the plaintiff failed to appeal. Appellees’ exceptions to Master Campbell’s report, therefore, complaining that the master has failed to charge the administrator with sums not contained in the statement submitted, cannot be entertained, as they are not before us.
The master has allowed the administrator some large items, of credit, the whole amounting to more than $1,800. On what principle in equity are credits allowed the administrator in cases of this kind? Of course, fraud, or waste of assets,, can have no application to credits, nor are they allowed upon any original or independent equitable right. As intimated in our former opinion in this case, we are not prepared to hold that an administrator can, after his accounts have been finally settled in the probate court and the assets distributed, come into a court of chancery, either upon a cross-bill, as in this case, or by original bill, and have his accounts opened and restated on the ground that by his own errors or mis? takes he has over-charged himself, or failed to take credits to which he was entitled. But if such jurisdiction were unquestionable, the court would grant no relief where such errors and mistakes were the result of his own negligence. See. Pomeroy Equity, secs. 828, 839, 854, and cases cited.
No one can look into these probate settlements and not see that the confused, inartificial and negligent manner of accounting has been the cause of the whole mischief. Granting, therefore, such original equity in his behalf, the court could grant him no relief for the reason that such relief would be founded upon his own negligence. Whatever credits are to be allowed him are, in a manner, ex gratia on the part of of the court, i. e., upon the principle that whoever demands equity through the court, and_ especially in cases of mutual and stated accounts, must do equity. See Pomeroy Equity, secs. 385, 386. But in accounts involving debits and credits, where relief may be afforded either party, the rule, we think, applies as well to one party as to the other. See Tongue v. Nutwell, 31 Md., 302.
Coming within this well-recognized principle of equity, we think that in allowing the administrator the benefit of these credits, it should be upon terms of charging him with the item of $1,069.17, which he admits is just and due from him to the estate.
As to the other grounds of exception on the part of the appellant, we think they are not well taken, and they are overruled accordingly. We are satisfied that the master’s report, as it stands, comes as near doing justice to both parties as it is possible to arrive at in this complicated and greatly troublesome proceeding, and the report is accordingly confirmed.
The case will be remanded to the circuit court with directions to enter a decree in behalf of the plaintiffs for the sum of eight hundred and ten and 76-100 dollars ($810.76), the balance found due by the master against the defendant, McLeod, and the sureties on his administration bond, to which the court will add interest at 6 per cent, per annum from the administrator’s last settlement in the probate court to date of the decree, and the decree to draw legal interest from its date until paid.
And the court will make such further orders or decree as it shall deem necessary, awarding process and for the distribution of the money to the proper parties; and the court will charge the costs of the appeals to the supreme court and proceedings therein to the plaintiffs in the court below, and all other costs in the case to the defendants.