Crowder v. Shackelford

35 Miss. 321

• Court: Mississippi Supreme Court
• Decided: April 15, 1858
• Status: Published

Opinion

Handy, J.,

delivered the opinion of the court.

This case comes up by appeal from the Court of Probates of Carroll county. The record is very voluminous and confused, and appears to be conceded not to contain all the proceedings which were had in the cause; but the facts necessary to be taken into view, in determining the points in controversy between the parties, appear to be as follows:—

In September, 1853, tlie appellees, as distributees of James 33. Crowder, deceased, filed a petition in that court against Green Crowder, the administrator, and Mary J. Stokes, the widow, and certain other distributees, of the deceased, stating that Green Crowder had been administrator of the estate, consisting of a large real and personal estate, since the year 1842, and that no distribution had been made; tendering a refunding bond, according to the statute, and praying for distribution to the petitioners of their shares of the personal estate. The administrator answered, admitting assets in his hands, and that no distribution had been made, except to Mary J. Stokes, the rvidow, who had received one-half of the lands and slaves, the deceased having left no children; that no other distribution had been made, because a suit for about the sum of $15,000 had been for a long time pending and in litigation, upon a claim of N. & J. Dick & Co. against the estate; and that the estate had been involved in other suits; that no distribution had been previously demanded, and no refunding bond tendered ; but expressing his willingness to make a distribution, as soon as he could have a fair settlement. He gives a statement of the slaves in his hands, as administrator, and of those distributed to the widow, stating that among the latter were a slave Agga and her two children, born since that division; and that, subsequently to that division, he had purchased the slave from the widow. The answer of the widow sets up that her dower in the lands was allotted to her in the year 1842, and in the slaves in 1844, by a valid decree, which she relies upon as a bar. This decree, though tendered as an exhibit to the answer, is not filed with it.

An amended petition was then filed by the appellees, seeking to set aside the division made to the widow, upon various grounds: that the petitioners were not parties to it, and had no notice of it; that the slaves were not set apart to her by the commissioners appointed to divide the real estate, but by others, appointed without notice, and who did not act under oath; that the division was unequal and unjust to the petitioners, because the slaves allotted to the widow were more valuable than the residue; and that it is void, for uncertainty, in not specifying the slaves set apart. The answer of Green Crowder admitted the want of notice to the heirs, of the division; that the division was made by commissioners, appointed, as alleged in the petition, and that it was unequal; but that he objected to it's inequality in the court, but his objection was overruled. He also admits that five slaves were allotted to the widow, in lieu of certain slaves given by the intestate to his mother in his lifetime.

The answer of the widow denies the most of the allegations of the amended petition: denying the necessity of notice to the petitioners, in allotting her share of the estate; alleging that in making the division, the commissioners considered the slaves alleged to have been given by the intestate to his mother, as still the property of the estate, and gave to the widow slaves equivalent to them, to make up her half of the estate.

Previous to the filing of this amended petition and the answers thereto, and at December term, 1853, Green Crowder filed his petition, alleging that errors and mistakes had occurred in the annual accounts returned by him, and asking permission to correct them ; and at February term, 1854, he filed another petition, specifying the several errors and mistakes which he desired to be corrected. After the filing of these petitions of Green Crowder, and at the February term, 1854, the court made an order, appointing A. M. Nelson a commissioner, to ascertain and report to the next term, the exact amount remaining in the hands of the administrator, subject to distribution; and at the March term, 1854, Nelson made his report, to which exceptions were filed, but they do not appear to have been disposed of.

At the same March term, Nelson was appointed a commissioner to ascertain the distributive share of the widow, Mrs. Stokes; but the record contains no report made by him upon that subject.

In this condition of the cause, it appears to have been submitted, at March term, 1854; at which term an interlocutory decree was made, in effect confirming to Mrs. Stokes the slaves previously allotted to her, except Agga and her children, and appointing commissioners to set apart to the petitioners their shares of the residue of the slaves in Crowder’s hands, including Agga and her children, which were held to belong to the estate, and to be subject to distribution to the heirs; and, by consent of parties, the commissioner was directed to inquire into and report the value of the hire of Agga and her children, from January 1st, 1844, the date of the division to Mrs. Stokes. It was also ordered that, after the commissioners should have set apart the shares of the petitioners in the slaves, Green Crowder should deliver them up accordingly. The decree further states that, as to the' money and choses in action on hand belonging to the estate, the court was not informed as to the amount in the hands of the administrator, the accounts of the administrator having been referred, at his instance, to a commissioner, whose report had not been made and confirmed; and it proceeds to declare, that the petitionei’s are entitled to a certain specified proportion of the money and choses in action, accruing from the hire of the negroes and the rent of the land, and from all other sources, and appoints a commissioner, (Nelson) to ascertain the amount of the distributive shares of the petitioners in these moneys and choses in action. It was also ordered, by consent of the petitioners and of Green Crowder, that notice should be given to them of the time and place of taking the account, and that all errors, either for or against Crowder, should be inquired into and corrected before the commissionei’, as fully as if a bill of review had been filed.

Afterwards, W. B. Helm and J. Somerville were appointed joint commissioners, though appointed at different times, in the place of Nelson; and the appointment of Somerville, is stated in the record, to have been by the consent of parties.

At February term, 1855, Helm and Somerville made their report, stating an account of the indebtedness of the administrator. To this, exceptions were filed by Crowder, and also by Mrs. Stokes. Those of the latter were overruled and disallowed; those of Crow-der were in part disallowed; but some of them were allowed, and, by the direction of the court, the commissioners restated the account, allowing to Crowder certain items of credit which had been rejected by them in the original stating of the account: and upon this account, thus restated, a final decree was made, directing Crowder to pay certain sums to the petitioners.

From the action of the court, in disallowing the exceptions and in rendering the final decree, both Crowder and Mrs. Stokes have prosecuted this appeal.

We will first consider the grounds of error complained of on the part of Green Crowder.

The first objection urged against the proceedings and decrees, both interlocutory and final, is, that this being an application for distribution before a final settlemént-'of the administrator’s account, it was not competent for the court to require a settlement of the administrator’s entire accounts; that upon such an application, all that the court cari do is, to make a rule upon the administrator, to distribute the assets in his hands, as they appear by his returns and accounts rendered to the court; and further than that, that it was not competent for the court,-in such a-proceeding, to ascertain the entire amount for which he was accountable to the distributees.

The statute authorizing such a proceeding is very-general in its terms. It provides that any one entitled to distribution may, at any time after the expiration of twelve months from the granting of administration, petition to the court, setting forth his claim, whereupon the court shall “grant a rule .on the administrator to make distribution agreeably to law,” the distributee giving bond and security, to refund a due proportion of any debts or demands which may afterwards appear against the estate, and costs incident thereto. Hutch. Dig. 665, § 91.

The object of the statute manifestly appears to be, to enable a person entitled ■ to distribution, to obtain the share of the estate to which he may be entitled. He is required to set forth his claim, and of course to establish it. - But what claim ? Clearly his claim upon the entire assets of the estate, which have come to the hands of the administrator, and for which he is accountable to those entitled to the estate. No mode of ascertaining the amount for which the administrator may be liable, nor the share to which the person asking distribution may be entitled, is prescribed, and none was necessary to be provided. That was left to the general powers of the court, which were ample, and required no further provisions for the attainment of the end intended by the statute. It is made the duty of the court, to grant a rule on the administrator to make the distribution agreeably to law.” If the administrator has returned no account, it will scarcely be contended that the court has hot power to compel him to render an account, to examine and try its correctness, to allow or disallow it, either wholly or in part, and to determine his accountability. Such a course is clearly contemplated by the statute; for it is not to be supposed, that a rule should be granted upon'the administrator to make the distribution, unless the amount to be distributed was judicially ascertained. The terms, “grant a rule, to make the distribution,” imply that the funds subject to distribution, as well as -the portions of the persons entitled thereto, have been previously ascertained and fixed. Such questions, of course, are not to be determined by the administrator, but must be settled by the court, to which the general duty of directing the administration is committed by law.

But suppose that the administrator has rendered erroneous and imperfect accounts, has not the court., in ordering the distribution, the power, to correct his accounts upon proper proof, and to determine the true amount of his accountability ? It is clear that it has'. The courtis required to order distribution to be made “ agreeably to law." Distribution of what ? Certainly of the estate in the hands of the administrator’, and forw’hich he is accountable at the time he may be required to make the distribution, and to the distributees, according to their “ claims” or interests in the estate, for which the administrator is accountable. This distribution is to be made “agreeably to law;” that is, upon an ascertainment, by the court, of the assets in the hands' of the administrator, for which he is accountable, and of the share, or shares thereof, to which the dis-tributees are entitled. It would be contrary to all principle to suppose, that these questions are to be settled by the administrator; and it is clear that they must be determined by the court, whenever a controversy in relation to them may arise, in the matter of the application for distribution. The power to require an account, appears plainly to be an incident to the jurisdiction to order distribution ; and that power might be entirely ineffectual, or imperfect, unless it was competent for the court, to investigate and consider all the acts of the administrator, showing for what assets he -was accountable, and what property or money was in his hands, to be distributed to the parties entitled.

There appears to be nothing in the statute sanctioning the idea, that the distribution intended should be only a partial one. On the contrary, the language ■ appears clearly to contemplate a distribution to the petitioner,'of the share of the whole estate to which he may be entitled. It is, that the court shall grant a rule to make the distribution according to law. This language will not bear the construction, that the petitioner was to receive merely a part of his share of the estate, or that any basis of distribution was to be acted upon, but the ascertainment of the entire assets for which the administrator was then accountable. The distribution contemplated appears to be, in effect, a final settlement, as between the distribu-tee and the administrator, of all assets for which the administrator is then accountable; and this appears to be plain from the provision, that the distributee should give a bond and security, to refund his proportion of debts, which might subsequently be established against the estate. If there were no subsequent debts paid, and no further assets came to the administrator’s hands, the account taken upon the application for distribution, would render any further accounting unnecessary, and be, in effect, a final settlement of the estate, so far as the party receiving his distributive share of the estate was concerned. If further debts were established and paid, the refunding bond is the resource to the administrator, provided by the statute, as a security for parting with the assets in his hands. There is, therefore, no inconvenience in treating the account and distribution made under this statute, as virtually a final settlement, so far as the administrator is then accountable; and it appears to have been intended by the statute to have that effect. This objection appears, therefore, to be untenable.

But it is again insisted, that though it might have been proper for the court to examine the accounts of the administrator previously rendered, if they had been called in question by the petition, yet that it was not proper to do so under the pleadings in this case, which alleged no acts of mal-administration, and made no charges of errors or omissions in his accounts.

It would be a sufficient answer to this objection, that the statute does not contemplate or require the proceeding by which the administrator’s accountability is to be ascertained, to be conducted according to strict rules of pleading. In case of controversy as to the amount for which the administrator should account, it would be the duty of the court to require an account, upon the same principles upon which a final account is taken, the object in both cases being to ascertain the true amount with which the administrator is chargeable; and no formality of pleading is necessary in taking such an account.

But the appellant is precluded of any objection on this ground, because the first suggestion of errors and mistakes in his accounts’ came from him, by his petitions at December term, 1853, and February term, 1854, praying that they should be investigated and corrected; and accordingly, in the interlocutory decree, at March term, 1854, it was ordered, by his consent, that all errors for or against him in his accounts, should be inquired into and corrected by the commissioner, as if subjected to examination by bill of review. This, while it is a conclusive answer to this objection, goes far to destroy any force that might be in the objection first considered, inasmuch as it shows that the re-examination of his accounts, and the new account made thereupon, was done at his instance and by his consent.

Again, it is objected that the appointment of the commissioners to take the account of the administrator, by the decree at March term, 1854, was void for want of authority; that their report and statement of the account were made without authority, and are insufficient to sustain the decree rendered thereupon upon the final hearing.

The statute gives to the Court of Probates, in case exception shall be made in court to any account of an administrator, power to refer the same to auditors, who shall examine and restate the account after hearing testimony, and report it for allowance. Hutch. 663, see. 87. "Without this statute the court had general jurisdiction of the matter of the accounts of administrators, and this statute is but directory as to the exercise of that jurisdiction, pointing out one mode in which it may be exercised, in case exception be taken to the administrator’s account as rendered by him. The court being vested with general jurisdiction of the subject-matter, it was competent for the parties in interest to waive a compliance with the form mentioned in the statute, and to agree that the matter of examining and stating the account of the administrator, should be referred to auditors or commissioners. It appears by the interlocutory decree at March term, 1854, that this reference was made by the consent of the appellant, and it also appears that the reference of the same matter to the commissioner Nelson, at February term, 1854, was made upon his petition and at his instance. This is clearly a waiver on his part, of the particular form and circumstances mentioned in the statute, as authorizing the reference of the matter of talcing and stating his account, and justifies the appointment, under the general jurisdiction of the court over the subject-matter.

It is , also objected, that the interlocutory decree referred the matter of taking and stating the account to the commissioners, without fixing the principles upon which they should proceed, submitting all questions of law and of fact to them. The statute, authorizing the reference, does not require that directions be given, as to the principles upon which the account is to be taken and stated; and it appears that the whole matter shall be submitted to the commissioners, “ to examine and restate the account after hearing parties and witnesses, and to make report” to the court, for its revision. By the terms of the decree, the account to be taken and reported, was subject to the action of the court. But, in addition to this, the power to examine and restate the account, in the general terms in which it was conferred upon the commissioners, appears to have been given by the express consent of the appellant. The taking of the account, and the evidence upon 'which it was founded was merely a ministerial act, done in order to aid the court in ascertaining the facts in relation to the matter; and it was competent for the parties to consent to a particular mode of ascertaining the facts, the essential judicial act remaining to be performed by the court, in its action upon the account, and report when returned by the commissioners.

The next ground of error insisted upon is, that the administrator was charged in the account, and by the final decree, with the rents of lands of the intestate, and that the interlocutory decree was erroneous in directing him to be charged with these funds. It is denied that the Probate Court had jurisdiction to charge him for rents, that not being a matter pertaining to the administration, and he being responsible to the heirs alone on that account.

It appears by the record, that he had voluntarily charged himself, in his annual accounts, with moneys received by him for the rent of the lands, and had received credits in those accounts, for moneys disbursed in the payment of debts, to an amount greatly exceeding the rents with which he is charged. Those accounts were passed and allowed, and were for the most part adopted, as to the credits allowed the administrator, in the account stated by the commissioners. Afterwards he filed in this cause, a petition specifying the errors in his annual accounts, which he desired to be corrected, but did not object to the charges which he had made against himself for rents. Under these circumstances, these charges were taken as correct, and were recognized as such in the interlocutory decree, and carried into the account of the commissioners ; and the administrator took no exception thereto in the court below.

It is true, as a general rule, that an administrator has no control or authority over the freehold estate of his intestate. Yet it is subject to the payment of the debts before the actual appropriation of it to that purpose; and it is competent for the heir to waive his right in it, and a compliance with the conditions prescribed by law • for the regular exercise of the power of the administrator over it, and to consent to his acts appropriating it to the payment of the intestate’s debts. Lee v. Gardiner, 26 Miss. R. 521; Kempe v. Pintard, 32 Ib. 324. After the administrator has received the • rents, and accounted for them to the Probate Court as assets of the estate, he will be precluded from alleging that he received the rents without authority, and must be chargeable with them as for assets rightfully received; and especially will this be the case when, as in this case, his accounts show that he has paid an amount equal to the rents received by him, in discharge of the debts of the intestate. His own voluntary accounting must be conclusive against him as to his authority to do the act, and he cannot be permitted in a subsequent accounting, to re-open his own accounts, and to deny his right to receive funds with which he had charged himself. Satterwhite v. Littlefield, 13 S. & M. 302. The court had jurisdiction to receive and pass upon his accounts, and if he thought fit to charge himself with funds connected with the estate, and which he had actually received, it would be contrary to the plainest principles of justice to permit him, on technical grounds, to deny his authority to receive the funds, and to claim to correct accounts already passed, on the allegation of his own wrong*, thereby in all probability causing a loss of the amount to the heir, and retaining it to his own use, by the operation of the Statute of Limitations. We, therefore, think that the administrator was properly charged for the rents in this case.

Another ground of objection is, that the administrator was • charged with interest in the account — with simple interest upon sums illegally disbursed by him, and with compound interest upon cash balances appearing, by his accounts rendered, to have been in his hands.

The allowance of simple interest upon sums illegally paid out, does not appear to be contested here; but it is insisted that the allowance of compound interest is not sustained by law, nor warranted by the evidence in the cause.

The rule appears to be well established, that if a trustee apply the trust funds in his hands to his own benefit, the cestui que trust is entitled to the profits; because the trustee is not permitted to speculate and make a profit upon the funds in his hands. Schieffelin v. Stewart, 1 John. Ch. Rep. 620; Ringgold v. Ringgold, 1 Harr. & Gill, 11-80; Harland’s Accounts, 5 Rawle, 323. And the cestui que trust is entitled to elect to take the-profits, or the principal with compound interest. 2 Kent’s Comm. 230 (8th edit.). This rule has been sanctioned by this court: Gully v. Dunlap, 24 Miss. 410; and though apparently harsh, it is salutary in its operation, in tending to keep trustees to the faithful performance of trusts reposed in them, in which parties are mostly concerned who are incompetent to protect their own interests, and the trustees- have often great temptations to abuse their powers. It is founded on the principle, that the cestui que trust is entitled to the profits made by the trustee by the use of the trust funds; and where the trustee has made, or there is ground to infer that he bad made, a profit, and the amount of it is not shown, the general rule has been adopted of allowing compound interest, as the measure of the profit which the trustee will be presumed to have made. Schieffelin v. Stewart; Ringgold v. Ringgold.

In examining the evidence set out in the record, upon the point of the use of the funds of the estate by the administrator, it appeal’s, from his annual accounts rendered, that from the year 1844 to the year 1855, he had in his hands, after all disbursements, in each year, a sum varying from about $1300 to about $12,000.

Notwithstanding the large assets in his hands, in the spring of 1849 he refused the application of Mrs. Stokes for distribution and settlement, and demanded money of her to assist in paying the expenses of the suit of Dick & Co., saying that he greatly needed money for that purpose. In November, 1852, he drew two bills to pay attorneys’ fees, and had them accepted, stating that he had not the money to pay the fees, and therefore had to draw bills on time, bearing interest, and to be met with cotton. He complained to Williamson that he was much troubled to pay the expenses of the suit of Dick, and that Mrs. Stokes would not assist him. He was hard pressed for money to pay the expenses of that suit, and had to give Nelson his note on time for his fee in 1852 and 1853. He paid the fees of Clark in small sums of $10, $20, or $40, stating as a reason, that times were hard, and money scarce.

This conduct is irreconcilable with his having on hand the large sums of money with which he was chargeable, and which greatly exceeded any sums paid by him for expenses upon the suit of Dick, added to the sums for which he gave his notes and bills.

It further appears, by the testimony, that, during the period of his administration, he has traded largely in lands; that he has made an “immense property,” and has been an active trader; that he works forty-five or fifty slaves, and owns in all eighty-five or ninety, and has a large number of horses and cattle. The number of his slaves, about 1841, appears to have been twenty-five nr thirty, and his crops of cotton appear to have averaged about seventy-five or one hundred bales about that time. His real estate appears to be very large. The testimony further tends to show that he has not been a successful planter.

This evidence we think sufficient to warrant the conclusion of the commissioners, and of the court below, that the administrator did not keep on hand the money with which he was chargeable. His avowed inability to pay the inconsiderable amounts required to pay fees, because he had not the money, is entirely inconsistent with his having the money on hand. He does not show that he used it in the legal course of his duty, and he has failed to show how it was used. It is not incumbent on the distributees to show how it was used, though the circumstances might justify the belief that it was used in trading, and for his own benefit, and by which he was, in part, enabled to acquire his large estate. It is only necessary to show that he did not keep the money on hand; and the presumption arises, upon his failure to show a proper use of it, that he applied it to his own use and benefit; and under such circumstances he was properly charged with compound interest.

The next objection insisted upon, is the disallowance of certain items of credit claimed by the administrator, mainly for fees paid to lawyers on account of the suit of Dick & Co.

It appears that that suit was litigated for several years in the Circuit Court, and in this court; that, besides the counsel whose fees were disallowed, the administrator retained Mr. Acee, and Messrs. Cothron and Caldwell, and Mrs. Stokes retained Mr. Sheppard ; that these gentlemen attended to the case in the Circuit Court, and were fully competent to defend the interest of the estate, in that court, without the aid of other counsel; that they ■were also ready and competent to attend to the case in this court, but as it was one of great importance, and for a large amount, and some of the counsel retained by the administrator could not attend this court to argue the case, it was deemed advisable to employ additional counsel in this court. It appears that the fees of the above-named counsel in the Circuit Court were allowed; but as the evidence is clear that the other counsel employed in that court were supernumerary, we think the fees paid such counsel by the administrator were properly rejected.

•In addition to the three counsel already retained to attend to the case in this court, and whose fees were allowed, it appears that three others were employed, and that the fee paid one of them was allowed, and the others rejected. The evidence shows that the counsel originally retained were attending to the case-in this court, and were fully competent to do justice to it, but that one of them was unable to attend and argue the case at the bar,'the other being always prepared to do so. These circumstances,- and the importance of the case, we think, justified the administrator in retaining one of the counsel engaged by him in this court; but from the evidence, the employment of the others was useless, and, therefore, the action of the court upon this point was correct.

As to the disallowance of the fees paid in the suits against Mrs. Stokes, it appears-that the fee paid one counsel was allowed; and there appears to have been no necessity for the employment of additional counsel, as the cases were not litigated'. The claim on this account was, therefore, properly rejected.

The last objection insisted upon is, that the administrator was decreed to make distribution of the woman Agga and her children, as property of the estate undistributed, and to account for their hire.

The ground of this objection is, that it appears, by the answer of Mrs. Stokes to the amended petition of the appellees, that the slave Agga had been distributed and set apart to her, and was afterwards sold by her to Crowder, who thereby became entitled to her in his individual right.

While it is true that the title to this slave is thus alleged to have been vested in Mrs. Stokes, by the division made by certain commissioners appointed for that purpose, yet that division was alleged to be illegal and irregular in many respects, and its validity Ayas directly brought in question in this cause. In addition to the fact that its irregularity is admitted by the answer of Crowder to the amended petition, and is substantially admitted by the answer of Mrs. Stokes, it appears that the interlocutory decree, made at March term, 1854, upon the submission of the question to the court, holds the division and allotment, as to the slave Agga, to be invalid; and as the record contains none of the evidence upon which that; decree was based, it must be presumed to be correct. Smith v. Hurd, 8 S. & M. 682. So far as the record shows, it does not appear that the division relied on, to the widow, had ever been confirmed by the court; and for aught that appears, it was entirely competent for the court to reject it, and to direct the division recognized in the interlocutory decree of March, 1854; and it is distinctly stated in that decree, that Crowder admitted that the slaves allotted, in the first division, to the widow, were of greater value than she was entitled to. These circumstances add force to the presumption of the correctness of the interlocutory decree.

But moreover, Crowder fully recognizes the correctness of the decree holding the slave Agga and her children to be the property of the estate, and subject to distribution. The decree states that, by consent of parties, the commissioners were to inquire into and report the value of their hire, since the alleged division to Mrs. Stokes; and no exception was taken to the report of the commissioners on this ground.

There appears, therefore, to be no valid ground to support this objection.

It is, however, said that the appellant is charged with the sum of $300, received by him from Mrs. Stokes, on account of the slave Agga, that sum being the excess received by her over her share, including Agga in the slaves allotted to her. But it appears, by the commissioners’ account, that he is credited by that sum, which had been charged against him, because the slave had been adjudged to the heirs, and surrendered by him.

Having thus disposed of the several objections urged in behalf of Crowder, and being of opinion that there is nothing therein to justify a reversal of the decree, we proceed to notice the objections taken in behalf of Mrs. Stokes.

The first objection is, that the administrator is allowed, in the account, full commissions upon the assets which came to his hands, and for which he was held accountable, and was charged, although the settlement was not a final one. This objection is already disposed of, in what has been said above upon the objections of the administrator; in which it is held that this distribution was, as to the assets accounted for, in effect a final settlement; and, of course, it was proper that the administrator, in making the same, and in surrendering all the assets in his hands, should receive the compensation to which he was entitled, so far as he had administered the estate.

The next objection is, that one-half of the commissions were required to be paid by Mrs. Stokes, or charged against her; whereas a considerable amount of the assets upon which the administrator’s commissions were allowed, came to his hands after she had received her portion of the estate, and that she was not chargeable with commissions on those assets.

This objection was not made a ground of exception to the report of the commissioners, nor does it appear to have been a matter of controversy in the court below. The facts bearing upon it do not appear, therefore, fully, by the record. Under such circumstances, it is not the proper subject for consideration in this court, and it cannot be properly determined upon this record.

Another objection urged is, that the commissioners remodelled their report after it was made, without authority or further evidence.

It appears, that upon the return of the report to the court, certain exceptions were filed to it, some of which were sustained, and the commissioners were directed to restate the account accordingly; and it was done, and afterwards it, was confirmed by the court. There was certainly nothing improper in this. The decision upon the exceptions was the judicial act of the court, and the restatement of the account was but a ministerial act,'which it was competent for the court to order to be done, and, when confirmed, it had the full authority of a judicial act.

Again: it is objected that the court erred in allowing certain items to the administrator, -which had been rejected by the commissioners and were disallowed in their report. These items consist chiefly of fees of counsel paid on account of the suit of Dick, which have been already considered, upon the objections of the administrator. For the reasons there stated, we consider this allowance just and proper, and the exception on this ground was properly overruled.

. Another objection insisted upon is, the allowance to the administrator for money paid by him, on a claim of one Brown, against the estate, founded upon receipts given by the intestate, for certain claims received by the intestate from Brown for collection. It appears that the account of Brown, setting forth his claim, had been allowed by the judge of Probates, on the 22d July, 1842, and that at December term, 1842, the administrator’s account, claiming allowance for the payment of the claim, is stated to have been “ examined and fairly stated and, under these circumstances, he was allowed credit by the commissioners’ account for the payment of the claim. When the objection to the allowance of the claim came up for consideration in the court below, Mrs. Stokes called the administrator as a witness, to testify to certain facts connected with the claim, and tending to show its invalidity; and having failed in the desired proof, the administrator was then examined as to certain facts tending to show its validity, the exceptant objecting to his competency as a witness.

It is, first, objected that the allowance of the claim of Brown, by the judge of Probates, on the 22d July, 1842, was insufficient to warrant the administrator in paying it, because such allowance could only be made by the court, and the date of it shows that it was not done at a time when the court could be held. But though not allowed at a regular term, it might have been done at a special term, and every presumption must be indulged in favor of the act of the judge, and that it was properly done; and. this was sufficient to justify the administrator in paying it, if he acted in good faith. It is immaterial, therefore, whether his account of December, 1842, in which it was charged, was formally and regularly passed and allowed or not. But though the order of allowance of his account is not formal, yet the matters of the account were carried into those subsequently and duly allowed, which would be sufficient to cure the informality, and to show that in fact it was allowed by the court. Under these circumstances the administrator was clearly entitled to have credit for the amount, in the account stated by the commissioners. And, therefore, it was immaterial whether the examination of the administrator in his own behalf was proper or not; for the claim was entitled to allowance without his testimony. But it is evident that he w'as competent under the circumstances to show the validity of the claim. He had been introduced and examined, by the exceptant, as a witness to a point tending to show that the claim was not valid; and he was, therefore, a competent witness in his own behalf to testify to facts connected with the same point and showing its validity.

These being the grounds of objection urged in behalf of this appellant, we think that they show no good ground for reversal of the decree.

And, upon consideration of the whole case, the decree must be affirmed.