24 Miss. 258 | Miss. Ct. App. | 1852
delivered the opinion of the court.
The plaintiffs in error presented their account as administrators, &c., of Moses Sumrall, deceased, for final settlement. Exceptions were taken to several items of the account, and the exceptions were sustained as to two items, and overruled as to the remainder. The items to which exceptions were sustained, were two credits claimed; one for “ $500, paid R. A. Sumrall’s
On the first day of May, 1848, Robert A. Sumrall, one of the administrators, presented to the probate court an account against the deceased for $500, “ for services as an agent and superintendent from the year 1843 to the year 1847, inclusive, at one hundred dollars per annum.” This account was proven by his own oath “ to be just and true after all just credits are given,” and on the same day the account was proven by the affidavit of Thomas Sumrall,- who says that “ on or about the 16th day of March, 1848, in a conversation which he had with Moses Sumrall, Sen., he acknowledged himself indebted to Robert A. Sumrall in the sum of $500, for services before that time rendered him.” On this proof, the probate court allowed the same, in the following language: “ Examined and allowed, and ordered to record Mayáist, 184$.”
It is contended that this order' is final and conclusive, and that on final settlement of the account, the validity of the claim or the propriety of its allowance and payment cannot be questioned.
By the statute of this State “ it is declared, that in no case shall an executor or administrator be allowed to retain for his own claim against the deceased, unless the same be passed by the orphans’ court, and every such claim shall stand on equal footing with other claims of the same nature.”
There is a provision in the statute for the allowance by the probate judge of claims against estates. That provision in the statute was only intended to justify a voluntary payment by the executor or administrator. It was not obligatory upon him, but he might after such an allowance have refused to pay the same, and contested its validity. The judgment or order of the court was not conclusive of the justice or legality of the demand. So in the case of an executor or administrator, who is also a creditor of the estate. An order or judgment of the court allowing the same on a mere ex parte application and proof, is not, in our opinion, binding and conclusive upon the
If in the ease of several administrators the account of one of them as a creditor should be examined and allowed by the probate court, and on such allowance it should be paid by his co-administrator, we think he would be protected in such voluntary payment to the same extent as a payment made to any other creditor of the estate. But when an administrator, whose account as a creditor upon an ex parte application has been allowed by the probate court, presents his administration account for settlement, and claims therein as a creditor of the decedent, we think every principle of equity and justice requires, that an opportunity, before denied, should then be allowed the distributees or creditors of the estate to contest the validity of the claim.
With this view of the law, we think the proof made on the hearing clearly sustained the judgment of the court in disallowing the credit of $500 claimed by the administrators.
Let the decree be affirmed.