Sanderson v. . Overman

Smith, C. J.,

(after stating the case). The rulings upon the four exceptions sustained, require the interest which is computed on both sides of the account at eight per cent, to be reduced to six per cent.; that no interest be charged against the executrix upon a series of items enumerated in exception two, and this interest to be stricken out; the like reduction from eight to six per cent, of the interest on a claim specified in exception three against F. L. Grand}' — a difference stated to be $136 42 — and that the indebtedness of Esau Randall by notes, whose principal is $1,000, be also stricken out as a charge against her.

The correction required by the ruling on exception three, by which the executrix is released of interest on specified items, would necessitate the striking of an equal amount of interest from the list of expenditures, since, if not herself required to pity interest, she could not charge it on the moneys applied to the debts, and therefore the result would be the same as if the correction were not made.

But the change to be made in the general account by the corrections required in the rulings upon the exceptions, cannot be seen upon a mere inspection of the papers, nor whether any residue will be left in the hands of the executrix when the account is thus reformed, or an amount sufficient to meet the demands against the estate. To ascertain the result a reference is necessary.

While we do not hesitate to hold the executrix responsible for what she has appropriated to her own use, as the debts must be paid before legacies, her responsibility depends upon the state of the general account when charged with these goods. The inquiry is important only to determine if she still has assets, or ought to have them, adequate to the present wants of the estate.

This reference ought to have been made and executed in the Court below before disposing of the action by dismissing it. As it was not done, to avoid the delay of sending the cause hack in order that the inquiry may he then made, we shall order a reference to our own clerk and await the result,, and it is so ordered.

Since the foregoing part of |the opinion was prepared, the clerk makes his report, and finds a residue in the hands of' the executrix of $1,804.05 unexpended, which is more than is required to discharge the remaining liabilities. Thus a case for the sale of the lands is not presented, and the petitioners are not entitled to the relief demanded.

The judgment, therefore, dismissing the petition must be affirmed, and it is so ordered.

No error. Affirmed.