Stewart v. Burkhalter ( 1854 )

Mr. Justice Fishee

delivered the opinion of the court.

The appellants as distributees of the estate of Jesse Burk-halter, deceased, filed their petition in the probate court of Covington county, for the purpose of compelling the appellee as administrator of the said Jesse Burkhalter, to inventory certain property, of which it is alleged the intestate died seized.

The petition alleges that Jesse, Joshua, and John Burkhal-ter owned, as copartners, fourteen slaves; which have been sold by the survivors, and that Joshua Burkhalter, as administrator of Jesse Burkhalter, has not returned an account of the interest of the intestate.

The court below sustained a demurrer to the petition, from’ which this appeal has been prosecuted.

The title to the property on the death of Jesse Burkhalter,. vested in the survivors, who were authorized to sell or dispose of the property for copartnership purposes. Upon settlement of" the copartnership account, the survivors would be compelled to account for the surplus or portion due to the estate of the-intestate. If this surplus should fall into the hands of the present administrator, the probate court could compel him to account for it, under that provision of the law, which requires an executor or administrator to give in a claim against himself..

As it does not appear by the petition that the copartnership accounts have been settled, that there is a surplus of the copart-nership funds, arising from the sale of the slaves, or that such* surplus is in the hands of the administrator, we think the petition is therefore defective, and that the demurrer was, therefore, properly sustained.

The decree will be so modified as to dismiss the petition without prejudice, and to permit the petitioners, if they choose, to file another petition in the probate court.

Decree affirmed.