Noland v. Calvit , 20 Miss. 273 ( 1849 )

Mr. Justice Clayton

delivered the opinion of the court.

This was a petition filed in the probate court of Adams county, by the legatees of Abram Galtney, deceased, against Pearce Noland, the surviving executor, praying for an order on him to render a final account and settlement of the estate. Noland answered that he had been co-executor with Joseph Galtney, who had been the sole acting executor, and denied that he had ever had any portion of said Abram Galtney’s estate in his hands to be accounted for as executor, but states he does not know whether Joseph Galtney ever settled, or presented a final account of his acts as executor. The court below made an order, “ that Pearce Noland, surviving executor of said Abram Galtney, deceased, do render a final account of his actings and doings as executor aforesaid.”

In the present attitude of this cause, we can see no objection to this order. The allegation in the answer, that the defendant never had any portion of the estate in his hands, would not preclude the petitioners from proof of the contrary. That is the very matter, in part at least to be tried, and the court could not in advance decide it in favor of the executor.

The liability of one executor for the acts of his co-executor is always dependent on circumstances. This court cannot undertake, in the absence of facts, and upon a merely conjectural state of the case, to lay down rules to govern the action of the court below. If, in taking the account, the facts give rise to the questions, which have been here argued, they can then be brought up for determination. They are not now presented, because no such questions arose or were determined in the court below.

The order will be affirmed, and the cause remanded.