Davis v. Davis , 10 Ala. 300 ( 1846 )

ORMOND, J,

Where the offices of executor, and guardian are united in the same person, he holds the estate in his hands as executor, and does not hold any thing as guardian, which is not separated from the assets of the estate, and placed to his account as guardian. To ascertain the amount in his hands as executor, to which the ward is entitled, it is obvious a settlement of his ■ accounts as executor, would be necessary. This it appears was done in this case, and' upon the settlement, that account was closed by placing the balance to the credit of the minor, which would be a debit, in the account of his guardianship.

Upon the settlement of his guardianship accounts, the covrt charged him with the amount thus found to be in his hands, and of the propriety of this there can be no doubt, unless the decree thus rendered against him, was superseded by a writ of error bond. It appears that the executor had sued out a writ of error upon the decree against him as executor, and that this suit was pending when the settlement of his guardianship was made, and the objection was, that this decree was not evidence of the amount in the hands of the executor, because it had been “suspended” by a writ of error, which was still pending. A s it could not be suspended, without a bond, so as to supersede an execution upon the decree, we' infer that such was the fact, and the objection should have been sustained. In this aspect of the case, no settlement of the guardianship, so far as the decree against the executor afforded evidence of the amount in his hands, could be made, until that cause was determined, and the amount for which he was chargeable definitely ascertained.

The offer to prove a mistake in the settlement of the accounts as executor, was correctly refused. If such a mistake in fact existed, it could not be rectified in this manner. As already observed, although the two offices may be united in the same person, the accounts must be separated, and cannot be blended together. The offer was to prove, that he was entitled to a credit which he had not received in the settlement of his accounts as executor, this could only be settled by a ¡proceeding in the orphans’ court for the settlement of his executorship, or in a proper case in chancery.

For the error previously noticed, the judgment must be reversed, and the cause remanded.