Roberts' v. Dale

46 Ky. 199 | Ky. Ct. App. | 1846

Chief Justice Ewing

delivered tlie opinion of the Court.

This is a proceeding against an executor, instituted by an assignee of the interest of one of the legatees.

There is error in the decree rendered, in this: 1st. That refunding bonds have not been required, before ordering execution against the executor. The time that has run since probate, is not so long as to justify the presumption, that there were no subsisting outstanding debts or demands against the estate.

2d. In leaving it to the Clerk to ascertain and deduct ■the amount of the costs, from the aggregate found against the executor, and then to divide the residue; and after ascertaining the amount of the two replevin bonds against ■Dale and Harlan, and the interest thereon, to deduct the same from the on§. third decreed to Dale, and ordering executions for the amount so ascertained by the Clerk, without the supervision of the Court. And the more especially is there erior in this respect, as the replevin bonds, or copies thereof, are not in the record, and the amounts or date of the bonds, are not shown, nor the time from whence interest has run. The Clerk is of course required to travel out of the record to ascertain these facts, and upon ascertaining them, to make the estimates, ascertain the result, and issue executions thereon. These are matters which should have been submitted to, and ascertained by the master, subject to the supervision of the Chancellor before rendering the final decree.

The practice of the Courts in finally hearing causes involving the settlement of accounts without the'intervention of the master, and the aid of his report, is not only troublesome to the Circuit Courts, but to this Court, and is unsafe to litigants. “Might this Court reverse for an. omission alone in cases involving the settlement-of 'complicated accounts •? In a doubtful ease, we should feel St >o'u>r duty to do so.”

And as the case must be reversed for the errors indicated, we would remark that we are not satisfied that injustice has not been done to Roberts, the executor, in fixing the amount of cash for which he is made responsible. There seems to be a discrepancy between his answer as well as the answer of Mrs. Roberts, and the amount of cash reported in the inventory.. Both answers alledge that there was only thirty dollars on hand at the death of the decedent, one third of which was paid to Mrs. Roberts, yet two hundred and forty three dollars, ($243,) is reported in the inventory as on hand, May not the sum so reported be the same $242 which the executor admits he received from Virginia, after the death of his testator, with one dollar which he admits he received from another source? And may he not, through mistake and oversight, have supposed that the amounts so received had not been reported'in the inventory, when, as the inventory was not made till September, they were in fact received and embraced in the same? If this be so, the executor has been charged twice with the same amount. A further enquiry should be directed Ihrough the master upon this subject.

And here we would remark, as we have often remarked, that the practice of finally hearing causes involving the settlement of accounts, without the intervention of the master and the aid of his report, is not only burthensome to the lower Court, and also to this Court, but is unsafe to litigants. The master may take additional proof as to doubtful items, and call upon the parties upon oath, to explain, and reporting the settlement and proof by which each item is sustained, with the result, to the Court, not only facilitate the labors of the Court and relieves Shim from the mere clerical drudgery of making -out the ■•account, but time being allowed to the parties to except •to any erroneous item, and show cause against it, adds greatly to the safety of litigants, and their security against inadvertanee or mistake, and enables this Court to see •the basis upon which the decree was made to rest, without traveling through a tedious calculation to ascertain whether the decree is right or wrong. It is questionable whether this Court ought not to reverse a decree for. this single omission, in a case involving the settlement of conflicting accounts, on account of the superior safety of the practice indicated. In a doubtful case we should feel it our duty to do so.

B. Sf A. Monroe for plaintiff; Letcher Sf Tilford and Underwood for defendants.

The decree is reversed and cause remanded, for the errors suggested, and upon the return of the cause it is directed that it may be submitted to the master, with instructions to take proof and make inquiry, by calling upon the parties on oath, if the opposite party desire it, or the master deem it proper for his own information, in relation only to the doubtful matter suggested, this Court being satisfied with the estimates made and amounts of debits and credits allowed in all other respects, as well as with the decree upon the merits, except as before indicated, and that the master ascertain the amount of costs, also the amount of the replevin bonds and interest, and adjust the same as directed by the decree, making such change only as his inquiries may authorize, in relation to the debit for cash, made against the executor, and that a decree may be rendered as intimated in this opinion, and the costs of this Court are divided.