King v. Cabiness' Creditors , 12 Ala. 598 ( 1847 )

GOLDTHWAITE, J.

1. No progress having been made toward the settlement of this estate under the final orders, it is necessarily governed by the act of 1843, (Martin v. Baldwin, 7 Ala. Rep. 923,) and the proceedings, so far as citation to the administrator, and notice to those having an adverse interest., seem to be in strict conformity to that act. [Dig. 229, § 41. 42.] It further appears that the administrator, in obedience to the citation, stated an account current and although this is not the account which the court finally decreed, yet the restating the account upon the final hearing, is precisely what the statute directs. It is made the duty of the court, upon the final hearing to audit and examine the account, as well as to hear and determine any exceptions which may be made. This necessarily includes the authority to correct any matter in which an error appears, and the restating the account by the court is expressly directed. This power being ascertained, the assignments of error all fail, because there is no exception taken by the administrator to the action of the court at the hearing, and without which the decree cannot be examined on error. [Clark v. West, & Ala. Rep. 117, and cases there cited.]

2. This conclusion would relieve us from examining the imputed errors in the final decree, but as the one involving the only shadow of merit has been argued, we may as well state our conclusion upou it as a question of practice. The statute is very express, that an executor or administrator using the funds of the estate, shall pay interest, and in making their returns, they are required, (if the fact be so,) to deny on oath, that they have applied the funds to their own use. [Dig. 198, § 28.] Prima facie therefore, administrators are chargeable with interest upon all sums received until disbursed, and must discharge themselves by their own showing. [Brazeal v. Brazeal, 9 Ala. Rep. 491.] There was then no error in the court thus to correct the account stated by the administrator. We can perceive no error ora the rcord. Judgment affirmed.