[98]*98Opinion by
Beatty, C. J., Lewis, J.,
concurring.
In this case, a petition was filed by Luca Jancovich and Dodato Milinovich against Marco Medin and Vincent Milatovich, executors of Marco Milinovich, deceased. The petition is headed, “ In the matter of the estate of Marco Milinovich, deceased.” In a subsequent stage of the proceedings, by leave of the Court, the names of both these petitioners were struck out from the title of the petition, and the following names were inserted in lieu thereof: “ Andreane Lucieh, Andrew Milinovich, Bogdan Milinovich and children of Marietta Barbarovich, deceased, John and Andreane Barbarovich, legatees.” ■
The petition shows that Marco Milinovich died at Virginia City on the fifteenth day of July, 1863, leaving Marqo Medin and Vincent Milatovich his executors, who subsequently qualified as such. It further shows that Andreane Lucich and the others who were substituted with her as petitioners were the residuary legatees of decedent’s estate, both real and personal. The petition further shows that all the residuary legatees are foreigners, not residing in the United States, and that the original petitioners were 'the agents or attorneys of the legatees. The petition then alleges that the executors never filed a joint inventory, but that Medin only filed a separate inventory on the-day of-, 1863, showing property to amount of about $27,857.50. The other executor never filed 'any. Letters testamentary were issued to Medin in 1863, and to Milatovich about the first of July, 1864. No joint accounting has ever been had by said executors with the estate.
It is further charged that Media’s inventory was not correct, true, or complete. It charges him with fraudulent suppression and concealment of certain property. It charges him with fraud in a settlement made with the Probate Court in February, 1865. It sets out many particulars in which the settlement is fraudulent, and winds up with the following prayer:
“ Wherefore, the premises considered, your petitioners respectfully pray that the said executor be cited to appear and show cause why he shall not be compelled to file a further inventory of the property of said estate, and to show cause why the settlement of [99]*99said accounts above referred to should not be set aside, annulled, and revoked. Your petitioners further pray the Court that said executor be immediately ordered to file de novo full, true, and correct accounts of all property of said estate — real, personal, and mixed — which has come to his knowledge or possession; of all moneys received or paid out in behalf of said estate; and that he be ordered to bring into Court proper and satisfactory vouchers for all sums disbursed; and your petitioners pray the Court for all such other and further relief as may be just and proper.”
The Court below went into proof as to the various allegations in the petition; came to the conclusion that there were some mistakes in the settlement of the executor Medin, but no fraud, and dismissed the petition. The petitioners moved for a new trial, which was denied, and appeal to this Court from the judgment or order of dismissal and from the order refusing a new trial.
Upon the argument of the case in this Court, one of the points most seriously urged. by the respondents is, that the petition does not state facts sufficient to entitle the petitioners to the relief sought. This brought up the question whether this petition might not be treated as a bill in equity. The petitioners insist that the District Court, having equity jurisdiction, and the facts in this case stated being such as to require the interposition of a Court of Equity, the proceeding may be treated as a suit in equity, and a decree rendered giving such equitable relief as the proof in the case will justify.
We think the counsel for petitioners are not correct in this position. Although the District Court has jurisdiction in common law, chancery and probate cases, yet the proceedings in each are separate and distinct. At least, a proceeding in a probate case must in its very nature be distinct from an action at law or a suit in chancery. Under our practice an equitable defense may be set up to an action at law, and in this way the common law and chancery practice .become to some extent blended in the same case. In other respects the proceedings in chancery, at common law and in Probate Courts are distinct, and the proceedings in one class of cases should not be mixed up with those of another. This, it appears to us, was peculiarly a proceeding in the Probate Court, and [100]*100bad none of the characteristics of a suit in equity. If it were a suit in equity, there would be a fatal objection to it. It would be a bill to set aside the settlement and accounts of an executor who has not yet made his final settlement with the Probate Court. This, it appears to us, would be very objectionable. A Court of Equity certainly has the power to inquire into the final account of an executor, and proceed to hear evidence to falsify and surcharge the account for fraud, and to render ■ such decree as is necessary to do equity in the case.
But if any bill has ever been sustained against an executor to falsify and surcharge an account not final, it has escaped our observation, and we are not referred to any such in the brief of counsel.
We think such a practice would be extremely inconvenient. If indulged, it might result in having several bills pending between the same parties at the same time, regarding the settlement of a single estate. There would certainly have to be something extraordinary in the case before a Court of Equity would countenance such a proceeding.
We must, then, consider this as a proceeding by petition in the Probate Court, and endeavor to see to what relief the petitioners are entitled. The petition was presented in the first place rather irregularly by the attorneys of the legatees, in their own name instead of the name of the legatees. Whilst this was irregular, it was not, perhaps, fatal to the petition.
The petition is entitled, “ In the matter of the estate of Marco Milinovich, deceased.” Such an estate was in course of settlement before the Court; an error in the parties to the petition was such an error as we think the Court might amend, and properly did amend, by substituting the names of the legatees for those of the attorneys. It is not like bringing a suit in the name of the attorney instead of the principal, which would be such a fundamental error as could probably only be remedied by bringing a new suit in the name of the proper parties. If we look at the facts stated in the petition, we think it shows abundant grounds for asking the interposition of the Court to protect the estate from utter waste and destruction. The prayer of the petition does not appear to have [101]*101been framed with a view to the exact relief which a Probate Court could have given under the existence of a state of facts such as is stated in the petition.
Section 115 of the Probate Act is as follows:
“ Whenever property not mentioned in any inventory that shall have been made, shall come to the possession or knowledge of an executor or administrator, he shall cause the same to be appraised in the manner prescribed in this chapter, and an inventory to be returned within two months after the discovery thereof; and the making of such inventory may be enforced after notice by attachment or removal from office.”
The first part of the prayer is certainly directed to the relief provided in this section, and the allegations of the petition and the proof equally show that the Court should have ordered a new inventory.
Sections 226, 7, and 8, of the Probate Act, read as follows:
“ Section 226. Any person interested in the estate may, at any time before the final settlement of accounts, present his petition to the Probate Judge, praying that the executor or administrator be required to appear and render such exhibit, setting forth the facts, showing that it is necessary and proper that such an exhibit should be made.”
“ Sec. 227. If the Judge be satisfied, either from the oath of the applicant, or from any other testimony that may be offered, that the facts alleged are true, and shall consider the showing of the applicant sufficient, he shall direct a citation to be issued to the executor or administrator, requiring him to appear at some day to be named in the citation, which shall be during a term of the Court, and render an exhibit as prayed for.”
“ Sec. 228. When an exhibit is rendered by an executor or administrator, any person interested may appear, and by objection in writing, contest any account or statement therein contained. The Court may examine the executor or administrator, and if he has been guilty of negligence, or has wasted or embezzled, or mismanaged the estate, his letters shall be revoked.”
Under the provisions of these sections, if the allegations of the petition are true, the executors should have been cited to appear, [102]*102and if it was shown by the evidence that the executors, had been guilty of negligence, waste, embezzlement, or mismanagement of the estate, they should have been removed. The final settlement of the accounts with the executors should have been made, and they ordered either -to pay over the money and estate to the legatees, or to an administrator, with the will annexed, as the case might require. The transcript contains neither the will of decedent, the inventory of the effects, nor the powers of'attorney of those parties who are representing the legatees. In the absence of these necessary documents, the Court cannot say what order should be made in the premises.
The transcript before us contains over three hundred pages; nearly three hundred of it is taken up with the testimony. The handwriting is not very legible, and we will not attempt to say whether the charges of fraud have or have not been sustained. To determine this point would require a careful weighing of the testimony, which would be very difficult with such a transcript. It is certain, if the evidence for the petitioners is true, there have been gross and outrageous frauds practiced. But, on the other hand, this evidence is contradicted in all material points by that of respondents. We think the Court below, on a rehearing, will be better able than ourselves'to weigh this evidence, and accept what is probable and reject what is improbable and not entitled to credit.
But outside of the question of fraud, there are other questions which it is proper for this Court to pass on. Waste, negligence, and mismanagement are equally as good grounds for removing executors as actual fraud or embezzlement.
In this case, one of the executors has totally neglected his duties as such. He appears to have done really nothing. If one qualifies as executor it is not enough that he fails to do anything actually wrong : he must do what is necessary to protect the estate, or he should be removed.
The other and managing executor has certainly wasted and mismanaged the estate in almost every conceivable way.
When he came into possession of the estate he found $1,480 in gold, belonging individually to the testator, besides his share of cash on hand in saloon, amounting to $443.75, in all $1,923.75.
[103]*103Decedent also had a half interest in liquors to the value of $4,758.36, at invoice price, if we understand the testimony, or if that was not the invoice price, it was the invoice price with the freight added. These were readily saleable at the cost price, and perhaps something more, so that he had what was equivalent to at least $4,300 in cash. He also came into the possession of real estate which was producing a monthly rental of about five hundred dollars. The estate did not owe, apparently, a dollar, except the expenses of testator’s last sickness, which only lasted about fifteen days.
At the end of nineteen months the personal property is all gone, and the acting executor brings out the estate as $5,341.22-2- in debt to himself, having in the meantime paid legacies to the amount of $3,538. In other words, he brings the estate in debt to himself some $1,800 over and above what he has paid to the legatees.
This certainly suggests to the mind at once some mismanagement of the affairs of the estate by the executors. If we examine the items of expense in detail, that impression certainly is not removed.
When the testator died he was half owner of a drinking saloon, which, it seems, made a profit of nearly $900 in the fourteen or fifteen days during which he was sick. After his death, the executor Medin, who was also part owner of the saloon, made haste to sell the same, nominally, to Mark Lovely and Spiro Vicanovich. He did not wait to qualify as executor, he did not have any appraisement of the stock on hand by any reliable and accessible person. He did have it appraised by a Mr. Dougherty, but he was not a resident of the State, and was not produced in the trial of this motion in the Court below. While the sale of the saloon was made nominally to Lovely and Vicanovich, there is certainly testimony enough to show that Medin himself was the real purchaser of at least one-third of the establishment, and indeed some testimony tending strongly to show that Lovely was then an agent of Medin, and that neither he nor Vicanovich paid anything for their interest in the saloon at the time of the sale. That the business was carried on with the means of testator, and nothing paid to Medin except the proceeds of sales from the liquors until he was paid up. This was certainly neither a prudent nor commendable [104]*104method of proceeding. It is, to say the least of it, calculated to throw suspicion on his conduct and motives.
Mr. Medin selects Mr. Dougherty as the appraiser, but he is at once the purchaser and the seller. His flimsy attempt to show that he only came into the concern after Lovely bought it, is only calculated to make his motives the more liable to an unfavorable interpretation.
When at a subsequent period he qualifies as executor, instead of stating the amount of money and liquors on hand in the saloon in which testator had a half interest, he only returns $1,295.47 as the net proceeds of testator’s share, thus swallowing up more than half of the testator’s share without any showing of what had become of it.
He makes the funeral expenses of the testator (a saloon-keeper in fair circumstances, but not very wealthy) over $1,200. He pays-large assessments on mining stocks without any order of the Probate Court for so.doing. He charges interest for money he probably never borrowed, or if he did borrow it, it wras without the shadow of authority so far as shown by this transcript. What authority he may have derived from the will of the testator or the powers of attorney of the legatees we know not. He paid one attorney $500 for nothing that we can see, unless it ivas for advising him how to squander the estate. He pays, or claims to have paid, another, the same amount for compelling himself to admit his coexecutor to a participation in the management of the estate.
When an estate is involved in litigation an executor has a right, and it is his duty, to employ counsel at the expense of the estate to defend its interests, but he has no right to charge the estate with the expense of counsel for doing Avhat he himself should do. An executor is paid a per centage for keeping the accounts and attending to the ordinary affairs of an estate. If he is so ignorant as not to be able to do this himself, he must out of his per centage pay for the necessary assistance.
In this case, the estate was involved in no litigation requiring the employment of counsel, except the litigation about the title to real estate. For that there is a separate charge, distinct from the two items of $500 each, to AA'hich we have alluded. We have [105]*105alluded to all these extravagances to show the necessity for immediate action on the part of the Probate Court.
That Court should immediately order the executors to file an account making a full showing of all the property and assets that have come to their hands up to the date of filing such account. The Court should cause a settlement to be made with the executors,- and all proper orders made to stop the unnecessary waste of the estate. Without the will before us we cannot tell what are the necessary orders to be made. Whether the estate shall be distributed among the legatees and devisees, placed in the hands of an administrator with the will annexed, or continued in the hands of the present executors, with such orders about the management of the estate as will stop the reckless expenditures heretofore indulged in, we cannot determine from the transcript before us.
One of the great difficulties presented to our minds in disposing of this case is, to determine what the Probate Court may review, determine or adjudicate when the case goes back for trial.
The 239th Section of the Probate Act seems to provide that what is adjudicated in one settlement of an executor’s or administrator’s account shall not be open to adjudication in any future settlement in the Probate Court.
That a final settlement with an executor or administrator is' and ought to be considered res adjudicata, and not open to further question, except when a bill in chancery is filed charging fraud, is a well settled principle; but to hold that a partial and incomplete settlement should preclude the Probate Court from further examination of the executor’s accounts, seems, to say the least, rather inconvenient. In obedience, however, to what appears to be the plain letter of the statute, we must so hold. But in holding that a partial account, acted on by the Probate Court, is to be considered as res adjudicata, we have high authority for saying it is only to be so treated as to those matters which the account and the decree of the Court show were fairly before the Court for adjudication. The general result at which the Court arrives, even in a final settlement, is immaterial. If the Probate Court finds, for instance, that an executor has properly .paid out all the estate that came to his hands, this will not prevent one interested in the estate from pro[106]*106ceeding in the Probate Court to compel the executor to account for property not mentioned in his account.
The settlement of an account is only res adjudieata as to those matters actually embraced in the account. Eor this principle see the very sensible opinion of Chief Justice Shaw in the case of Field v. Hitchcock, 14 Pickering, 405.
It has also been held that where a mistake appears in a former settlement, it may be corrected in a subsequent one. (See 1 Pickering, 159-60.)
It may be difficult to determine, under this, latter rule, where the line is to be drawn as to that which may be corrected as a mistake and as to that which shall stand as res adjudieata. It would at least be safe, if anything is to be corrected which has once been passed on, to say everything is liable to correction which shows upon its face that it is erroneous: that there has been a mistake either of fact or law as to that item.
This would allow the Court, at any time before final settlement, to correct its own errors, but not to reopen the proof as to accounts allowed, except perhaps in eases where the account showed error on its face, but did not show (without explanation) the extent of the error.
So, too, where anything is admitted by the executor or administrator to be a mistake, all this may be corrected. But if the mistake or error are only to be shown by going anew into the proof, this should be held as res adjudieata, and not liable to be opened to new testimony.
Adopting these rules, then, let us see what can be investigated in a new trial of this motion. There was an account filed by one of the executors in February, 1864, but no notice seems to have been given as to the settlement of this account, and no action seems to have been taken thereon. In February, 1865, a second account was filed, not embracing what was contained in the first, but merely setting out with the balance as shown by that account, and continuing the account from that time down to the filing of this second account. Upon the filing of this account, notice was given that the Court would hear exceptions to the same, and take such steps as the law requires for the settlement thereof. This case seems to have [107]*107been regularly brought to a hearing, and the account was examined. But, in approving this account, we hold the first account was in no manner approved of acted on. Had the first account been properly approved, then it would have been proper to commence where that left off. But as the first account was never approved, the mere assertion in the second account of what appeared as the balance due on-the first cannot be held to preclude an examination into the items of the first.
The first account has never been the subject of adjudication. That the Court and the counsel who drew up the decree of settlement considered only the latter account as adjudicated is apparent, from the language of the decree. That decree concludes as follows :
“ And it appearing to the Court, after due examination, that said' account contains a just and full statement of all the moneys- received and disbursed by said executor from the twelfth day of February, a.d. 1864, the date of the preceding report of said executor, to the twelfth day of February, A.D. 1865, including all sums of money belonging to said estate which came to his hands as such executor, or were received by another by his order or authority for his use as such executor, during said period; that the amount of said money thus received was $6,483,831-, and the amount thus disbursed $11,825.06, leaving said estate debtor to said executor in' the sum of $5,341.221; that .for the items of disbursements proper vouchers are produced to the Court; and it being proved by the affidavit of said executor, annexed to his account, that the items of his expenditure named and charged in said account have actually been paid and disbursed by him, at the place where, the date when, and the parties to whom the said payments are stated in the said account to have been made respectively. And the Court having duly considered the said report and account, and the proofs and allegations and matters aforesaid:
“ The Court finds that the said account is just, true, and correct, and entitled to be allowed and approved.
“And now, on motion of Gr. D. Keeney, Esq., attorney for said executor, it is ordered and decided that the said account and report of Marco Medin, executor as aforesaid, be and the same are [108]*108hereby in all respects, as the same were rendered for settlement by the said Marco Medin, executor, etc., approved, allowed, and settled.”
If, then, only the second account was properly adjudicated, all that was embraced in the first account is open to inquiry. The Court may inquire into the funeral expenses, both as to what was expended and as to the reasonableness of the expenditures. It may inquire into the circumstances of the sale of the Uncle Sam stock, as to whether it was a fair and bona fide sale. The same taxes are admitted to be included in both bills: they must of course be excluded from the first. Inquiry may be made into the matter of rents from the death of testator to February 12th, 1861, the value of liquors on hand, the fairness of the sale, etc. Indeed, the whole question is open, so far as the period from the death of testator to February 12th, 1864, is concerned; and the executor should be compelled to make a full showing as to this part of the affairs of the estate, both as regards the property which came to his hands and as to the repairs he made. His vouchers for expenditures in repairs should be produced, or if lost, accounted for.
Inquiries may also be made as to whether these- expenditures were reasonable and proper. Of course the executor must account for jewelry, etc., omitted from the invoice.
With regard to the compromise affair, we are more at a loss than ■in regard to any question presented in the record.
. Here is an item of the account of February, 1865. If anything was adjudicated in regard to this item, it was: first, determined that this amount was paid; second, it must also have been determined that it was rightfully paid: for these are the very questions presented as to each item of an account presented for settlement. Whether it was paid, was a question to be determined by proof. Whether it was rightfully paid, was a mixed question of law and fact. If the executor, on his own motion, could pay this amount of money and hold the estate responsible, then we must in this case presume that it was proved to the satisfaction of the Court that this was rightfully paid. But we incline to the opinion that an executor, without the order of the Court, could not lawfully make such payments. A suit pending [109]*109against the estate at the time’, we are inclined to think, under the provisions of the 208d Section of the Probate Act, might, upon the order of the Probate Court approving such a course, have been compromised, and the money paid to effect a Settlement. But the executor, without the advice of the Court, had no right to make such a compromise.
He did, however, make the compromise ; and as he was both executor and tenant in common, he must be considered as having made it in his capacity of tenant in common.
The law is well settled that when one tenant in common buys in an outstanding title, it inures to the benefit of all his cotenants, if they elect to bear their share of the burthens of the purchase. (See 4 Kent’s Commentaries, p. 311, note C, 10 edition.)
But the cotenants cannot, we think, (unless they have previously assented to or encouraged the purchase) be compelled to-contribute. It appears to be purely a matter of choice with them whether they will contribute and take the benefits of the purchase, or stand on their former rights. We-have not met with any reported case where a cotenant has been forced to contribute, where he fairly and openly chose to renounce the benefits of the purchase.
The devisees in this case are then entitled either to contribute or reject the terms of this compromise. We think that right has not been and cannot be properly presented to them in the Probate Court. This is a matter to be settled between the parties anficably, or in a Court of Equity. The Probate Court has nothing to do with it.
The executor clearly had no right to borrow money for the estate unless expressly authorized by the will, and the charge for interest in his second account must be struck out unless so authorized. An executor has no right to speculate for or with the estate. If he held mining stock which was likely to be forfeited before he could apply to the Court for instructions, he might be justified in paying something to preserve it. But he is certainly not justified in borrowing money for mining speculations.
If he held stock liable to large assessments, he should have applied to the Court for leave to do one of two things : either to sell the stock, or, better still, if the estate was surely solvent without the stock, to turn it over to the legatees, and let them sell, or take their chances on speculation with it.
[110]*110The order of the Court below must be reversed and set aside.
The petitioners will be allowed to amend their petition, if they so desire; and further proceedings will be had in accordance with the views expressed in this opinion.