Stone v. Morgan
Stone v. Morgan
Opinion of the Court
delivered the opinion of the Court.
This cause comes up on appeal and cross-appeal'from the action of the court below on exceptions to the final account of the executors.
The first exception should not have been sustained. One of the executors testified that W. G. Stone, the debtor, “ is insolvent ; ” the objection that it cannot be inferred from this that he was insolvent at the time when collection of the debt should have been made, is too refined. The executor was giving his reason for not having collected the debt, or showing why it could not have been collected. The only fair inference is that the debtor has always been insolvent since the death of the testator. If the exceptants thought a different construction could
The second exception should have been sustained. No inventory of the claims, which are now said to have been uncollectible, was filed until after the petition for final settlement had been presented to the court. The executors could not, by filing a statement that these claims were uncollectible, give to it the character of evidence. They should have introduced some evidence to show why the debts were not collected. The burden of proof is on them, and not on the distributees.
Tell City Co. v. Stiles, 60 Miss., 849.
The third exception was properly overruled. There is nothing in the record showing that the executors had not accounted for the interest therein referred to.
The fourth, fifth and sixth exceptions were properly overruled ; the fifth and sixth are meaningless.
The seventh exception should have been sustained.
After the date of the loss of the funds, the executors reported that it was in their hands, and this'account was allowed and passed by the court. It was conclusive against the executors.
There has been a decree of the court made on the facts as stated by them, and they cannot re-open it by now stating the facts to be different from those stated, to obtain the judgment on the annual account. Crump v. Gerock, 40 Miss., 765 ; Johnson v. Miller, 33 Miss., 553; Effinger v. Richards, 35 Miss., 540 ; McFarlane v. Randle, 41 Miss., 411.
Reversed on appeal and cross-appeal and remanded.
Reference
- Full Case Name
- W. T. Stone, Executors v. Lizzie Morgan and Lizzie Morgan v. W. T. Stone, Executors
- Cited By
- 1 case
- Status
- Published
- Syllabus
- 1. Estate oe Decedent. Final account. Exception for failure to collect debt. Evidence of insolvency of debtor. On the hearing of an exception to the final account of an executor for a failure to account for a debt due the estate, the executor testified that the debtor “is insolvent.” Beld, that no effort having been made by the exceptors to elucidate this testimony, by further examination of the executor, it is proper to conclude that such debtor has been insolvent ever since the death of the testator. 2. Same. Non-accounting for debt. Evidence on exception thereto. Case in judgment. It is not sufficient to excuse an executor from accounting for certain claims due the estate, for him to file, for the first time, a list of such claims as uncollectible, after the presentation of a petition by the legatees for a final settlement. But, upon exception taken for such non-accounting, some evidence should be introduced at the hearing thereof to show that such claims were not collectible. 3. Same. Final account. Executor estopped to re-open annual account. Case in judgment. ' An executor deposited funds of the testator’s estate in a merchant’s safe, and the same were stolen. Afterwards the executor, in his annual account, reported such funds as being in his hands, which account was duly passed on and allowed by the court. In his final account the executor asks credit for the funds so stolen. Held, that he is estopped to re-open the decree on his annual account by making a statement of facts different from that upon which his annual account was approved.