Stone v. Morgan ( 1887 )

Cooper, C. J.,

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 be fairly put on the language of the witness, they should have cross-examined him further.

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.